Advocacy by Charities: What is the Question?
| Author | Susan Barker |
| Position | Director of Sue Barker Charities Law, Wellington, New Zealand |
| Pages | 1-57 |
Advocacy by Charities: What is the
Question?
Susan Barker*
“ere are no right answers to wrong questions.”- Ursula K Le Guin
Despite the decision of the Supreme Court of New Zealand in Re Greenpeace of
New Zealand Incorporated, the issue of advocacy by charities remains unsettled in
New Zealand, with at least three cases awaiting determination by the New Zealand
courts at the time of writing.
is article seeks to examine the questions that decision-makers should be asking
themselves when considering the issue of advocacy by charities. First, the article considers
the legal position prior to the Charities Act 2005, and concludes that New Zealand
charities were able to undertake unlimited non-partisan advocacy in furtherance of
their stated charitable purposes. e article then considers whether that position was
changed by the Charities Act, or by the Supreme Court decision, and concludes that it
was not.
e article then argues that current government interpretations of the Supreme
Court decision that require charities to demonstrate public benefit in all of their activities
are resulting in a framework in New Zealand that is complex, highly subjective and
unworkable in practice. Provided the advocacy is not partisan and complies with other
general legal restrictions on speech, charities should be free to advocate for their charitable
purposes as they see fit, without undue government interference.
* Sue Barker is the director of Sue Barker Charities Law, a boutique law
firm based in Wellington, New Zealand, specialising in charities law
and public tax law. In 2019, Sue was awarded the New Zealand Law
Foundation International Research Fellowship to undertake research into
the question: “What does a world-leading framework of charity law look
like?” is article was written in August 2019.
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Barker, Advocacy by Charities
I. I
II. P B Charities aCt
III. T T F W A P I C
A. Ascertaining an Entity’s Purposes
B. e Public Benefit Test
C. Was ere a Political Purposes Exclusion?
D. e ‘Spirit and Intendment’ Test
E. Summary
IV. W T P C B P T Charities aCt
A. Unintended Consequences
B. Subsection 5(3)
C. Subsection 18(3)
D. Subsection 5(2A)
E. Section 59
F. Summary
V. D T S C D C T L
A. Greenpeace’s Purposes
B. e Commission’s Decision
C. e High Court Decision
D. Re Draco
E. Re Greenpeace HC
F. e Court of Appeal Decision
G. e Promotion of Peace
H. Ancillary Purposes
I. e Supreme Court Decision
J. e Presumption of Charitability
K. Manner of Promotion
L. Assessing Public Benefit
VI. W I T Q F T S C D
A. e Board’s Second Decision
B. Freedom of Expression
VII. C
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I. Introduction
The decision of the New Zealand Supreme Court in Re Greenpeace of
New Zealand Inc1 was heralded as a victory for charities, ostensibly
correcting an unduly strict approach, to the issue of advocacy by charities,
that had been taken by the agencies responsible for administering New
Zealand’s charities’ legislation (first, the Charities Commission, and then
the Department of Internal Affairs — Charities Services Ngā Rātonga
Kaupapa Atawhai (“Charities Services”) and the Charities Registration
Board (the “Board”), collectively referred to below for convenience as
“Charities Services”).
However, in practice, Charities Services’ interpretation of the
Supreme Court decision appears even more restrictive of charities’
advocacy than that impugned by the Supreme Court. Charities Services’
current approach to the issue of advocacy by charities has been described
as “complex, highly subjective and … unworkable”2 in practice. It also
puts New Zealand out of step with comparable jurisdictions, such as
Australia and Canada.
is article suggests that the Supreme Court decision did not in
fact change the law in New Zealand; the law in New Zealand regarding
the issue of advocacy by charities, in the writer’s respectful submission,
was and remains broadly aligned in principle with the approach recently
adopted in Canada: that charities may undertake unlimited non-partisan
1. [2015] 1 NZLR 169 (SC) [Re Greenpeace SC].
2. Krystian Seibert, “Could the Charities Act 2013 Pose a Problem for
Advocacy Charities?” (18 December 2018), online: Pro Bono Australia
problem-advocacy-charities/>.
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Barker, Advocacy by Charities
advocacy in furtherance of their stated charitable purposes.3 If such
advocacy is in the best interests of those charitable purposes, charities
in fact have a duty to undertake it. is article respectfully suggests that,
when it comes to the issue of advocacy by charities, Charities Services are
not asking themselves the right question.
In considering whether the law in New Zealand was or was not
changed by the Supreme Court decision, it is first necessary to consider
the law prior to the decision. is article does so in two parts: the position
prior to the enactment of the Charities Act 2005,4 and then whether that
legislation changed that position.
II. e Position Before the Charities Act
Prior to the passing of the Charities Act, charities cases in New Zealand
generally arose under tax legislation.5 For decades, the Income Tax Act
20046 and its predecessors had defined ‘charitable purpose’ inclusively
by reference to the four ‘Pemsel heads’:7 (1) the relief of poverty; (2) the
advancement of education; (3) the advancement of religion; and (4)
3. On 13 December 2018, Bill C-86, Budget Implementation Act, No 2,
1st Sess, 42nd Parl, 2018 amended the Canadian Income Tax Act, RSC
1985, c 1 (5th Supp) to permit charities to carry on unlimited advocacy
in support of their stated charitable purposes (although some question
marks appear to remain over how the term “public policy dialogue
and development activities” will be interpreted in practice, see draft
Canada Revenue Agency guidance CG-027, “Public policy dialogue
and development activities by charities” (21 January 2019), online:
Government of Canada
charities-giving/charities/policies-guidance/public-policy-dialogue-
development-activities.html>).
4. 2005/39 (NZ) [Charities Act].
5. Foundation for Anti-Aging Research v Charities Registration Board, [2015]
NZCA 449 at para 8 [Charities Registration Board] referring to Molloy v
Commissioner of Inland Revenue, [1981] 1 NZLR 688 (CA) [Molloy]; and
Latimer v Commissioner of Inland Revenue, [2002] 1 NZLR 535 (HC)
[Latimer HC].
6. 2004/35 (NZ).
7. See Commissioners for Special Purposes of the Income Tax v Pemsel, [1891]
AC 531 (HL (Eng)) [Pemsel].
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other purposes beneficial to the community. e current definition in
section YA 1 of the Income Tax Act 20078 is preceded by corresponding
definitions in sections OB 1 and OB 3A of the Income Tax Act 2004,
sections OB 1 and OB 3B of the Income Tax Act 1994,9 section 2 of the
Income Tax Act 1976,10 section 2 of the Land and Income Tax Act 1954,11
and so on.
III. e Test for Whether a Purpose is Charitable
e test for whether a purpose fell within this statutory definition was set
out by the Court of Appeal in Latimer v Commissioner of Inland Revenue12
as follows:
[i]t is … common ground that there must be a two-step inquiry: first, whether
the purpose is for the public benefit and, if so, secondly, whether the purpose
is charitable in the sense of coming within the spirit and intendment of the
preamble to the Statute of Charitable Uses 1601 (43 Eliz. c.4).13
It can be seen at once that this two-step test applies to purposes. It does
not apply to activities, and it does not apply to the organisation itself. e
common law definition of ‘charitable purpose’ developed in the context
of trust law, where a charitable purpose trust is an exception to the general
rule that a purpose trust is invalid.14
It is also axiomatic that a purpose must meet both limbs of the test.
A conclusion that a purpose is ‘charitable’, by definition, meant that the
purpose was both within the spirit and intendment of the preamble to
the Statute of Charitable Uses 160115 (the “preamble”), and for the benefit
of the public.
8. 2007/97 (NZ).
9. 1994/164 (NZ).
10. 1976/65 (NZ).
11. 1954/67 (NZ).
12. [2002] 3 NZLR 195 (CA) [Latimer CA].
13. Ibid at para 32 [emphasis added].
14. is fundamental principle was noted by the Supreme Court of Canada
in Vancouver Society of Immigrant and Visible Minority Women v Minister
of National Revenue, [1999] 1 SCR 10 at para 144, Iacobucci J [Vancouver
Society].
15. (UK), 43 Eliz I, c 4.
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Barker, Advocacy by Charities
A. Ascertaining an Entity’s Purposes
Before applying the common law test to an entity’s purposes, it was
first necessary to ascertain what those purposes were. is required
interpretation of the entity’s constituting document, in a manner similar
to the process used for interpreting other written documents, but with
an added overlay of a ‘benignant construction’ in favour of charity.16 e
Court’s role in this process was interpretation, not creation.17 An entity’s
activities were regarded as relevant only to the extent that the entity’s
constituting documents were unclear as to its purpose, or where there
was evidence of activities by an entity that displaced or belied its stated
charitable purpose18 (for example, in the case of sham). It was as rare for
a purpose to be inferred from activities as it was for extrinsic material
to cause the terms of a contract or a statute to be interpreted to mean
something they did not say.
16. See Latimer v Commissioner of Inland Revenue, [2004] 3 NZLR 157
(PC) at para 29 [Latimer PC]; and Re Collier (Deceased), [1998] 1
NZLR 81 (HC) at 95 [Re Collier]. See also: Perpetual Trust Ltd v
Roman Catholic Bishop of Christchurch, [2006] 1 NZLR 282 (HC) at
Revenue Commissioners v McMullen, [1981] AC 1 (HL (Eng)) at 4-5; and
McGovern v Attorney-General, [1982] 1 Ch 321 (Eng) at 343, 346, 353
[McGovern].
17. See Inglis v Dunedin Diocesan Trust, [2011] NZAR 1 (HC) at paras 29-33.
18. See Re e Foundation for Anti-Aging Research and e Foundation for
Reversal of Solid State Hypothermia, [2016] NZHC 2328 at para 85
[Re e Foundation for Anti-Aging Research] referring to Institution of
Professional Engineers New Zealand Inc v Commissioner of Inland Revenue,
[1992] 1 NZLR 570 (HC) at 572; New Zealand Society of Accountants
v Commissioner of Inland Revenue, [1986] 1 NZLR 147 (CA) at 148
[Accountants]; and Molloy, supra note 5 at 693.
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To meet the requirements for income tax exemption,19 an entity’s
purposes had to be exclusively charitable.20 However, the requirement
for exclusivity “[did] not mean what at first sight it might be thought
to mean”.21 A non-charitable purpose that was ancillary, secondary or
subsidiary to a charitable purpose would not have a vitiating effect.22
Importantly, the ‘ancillary’ rule applied to purposes of an ancillary or
subordinate nature; it did not apply to activities.23
Advocacy is inherently an activity, rather than a purpose. e
common law of charities said very little about charities’ activities, the
key requirement being that charities’ activities must be carried out in
furtherance of the charity’s stated charitable purposes.24 Conceptually, it
would have been very rare for ‘advocacy’ to have constituted a purpose
19. Under the charitable income tax exemption, currently contained in
section CW 41 of the Income Tax Act 2007, supra note 8; the predecessors
of which include section CW 34 of the Income Tax Act 2004, supra note 6;
paragraph CB 4(1)(c) of the Income Tax Act 1994, supra note 9; subsection
61(25) of the Income Tax Act 1976, supra note 10 and so on.
20. Latimer PC, supra note 16 at para 30.
21. Institution of Professional Engineers New Zealand Inc v Commissioner of
Inland Revenue, [1992] 1 NZLR 570 (HC) at 573. See also Latimer HC,
supra note 5 at paras 67-74.
22. Molloy, supra note 5 at 695.
23. Ibid.
24. is common law is in the process of being codified in New Zealand.
Sections 22, 24, 26(b) and 9 of the recently-enacted Trusts Act 2019,
2019/38 (NZ) provide that the trustees of a trust have a mandatory
duty to further the charitable purposes of the trust, in accordance with
the terms of the trust. Sections 131 and 134 of the Companies Act 1993,
1993/105 (NZ) provide that a director of a company has a duty to act
in what the director believes to be the best interests of the company, and
must not agree to the company contravening its constitution. Clauses
48 and 50 of the exposure draft Incorporated Societies Bill online (pdf):
Ministry of Business, Innovation & Government .mbie.govt.nz/
assets/7d5df7c03a/exposure-draft-incorporated-societies-bill.pdf> (a final
version of which is expected to be introduced into Parliament in late
2019) propose to codify similar requirements for officers of incorporated
societies. Most charities in New Zealand take the form of a trust,
incorporated society or company.
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in itself; it is difficult to conceive of a situation whereby a charity would
engage in advocacy for its own sake, without connection to a charitable
purpose.
Charities were of course subject to general laws governing advocacy,
such as electoral law, laws proscribing breach of copyright, defamation,
‘hate speech’, and the like. Beyond that, however, as a matter of charities
law, there was no legal restriction on charities’ ability to engage in
non-partisan advocacy activity, provided that it was permitted by their
constituting document and carried out in furtherance of their stated
charitable purposes.25 Advocacy activity that was not in furtherance of a
charity’s stated charitable purposes was prima facie ultra vires and liable
to be treated as such.
Having ascertained the entity’s purposes, or its main or “true”26
purpose, the next step was to consider whether that purpose was
charitable. is required application of the two-step test set out by the
Court of Appeal.
B. e Public Benefit Test
e first limb of the two-step test, the public benefit test, comprises
two parts: a ‘benefit’ limb, and a ‘public’ limb. It asks, firstly, whether
the purpose in question is beneficial to the community, and secondly
whether the class of persons eligible to benefit constitutes the public, or a
25. is factor did not stop then Prime Minister, Right Honourable Rob
Muldoon, from stripping CORSO (Incorporated) of its government
funding and its legislated tax privileges, in retaliation for its opposition to
the 1981 Springbok rugby team’s tour of New Zealand (in protest against
the South African apartheid regime). However, the legitimacy of these
actions was never tested in a court of law. See the discussion in Myles
McGregor Lowndes & Bob Wyatt, Regulating Charities: e Inside Story
(New York: Routledge, 2017) at 192.
26. In Commissioner of Inland Revenue v Medical Council of New Zealand,
[1997] 2 NZLR 297 (CA) at 309, 318 [Medical Council], a majority
of the Court of Appeal held that the Medical Council of New Zealand
had a non-charitable purpose to benefit individuals, but also had a wider
charitable purpose of safeguarding the health of the community. is
latter purpose was found to be its ‘true purpose’.
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sufficient section of the public.27
e ‘benefit’ limb required forming an opinion on the evidence before
the decision-maker as to whether the particular purpose in question was
beneficial to the community, bearing in mind that in many classes of case
the existence of public benefit will be readily assumed;28 the facts may
“speak for themselves”,29 or a purpose may be “so manifestly beneficial
to the public that it would be absurd to call evidence on this point”.30
Purposes for the relief of poverty, the advancement of education and
the advancement of religion were presumed to meet the ‘benefit’ limb
of the public benefit test unless the contrary was shown.31 Otherwise,
Parliament’s involvement in, or regulation of, an activity may provide a
guide as to public benefit.32 On rare occasions, direct evidence of public
benefit may be required.33
27. See e.g. Accountants, supra note 18, at 152.
28. Molloy, supra note 5 at 695, referring to National Anti-Vivisection Society
v Inland Revenue Commissioners, [1948] AC 31 (HL (Eng)) at paras 49,
65-66, 78-79 [National Anti-Vivisection Society]. See also Medical Council,
supra note 26, as noted by counsel for the plaintiff in Latimer HC, supra
note 5 at para 83, there was no direct evidence before the Court that a
benefit to the public arose from the maintenance of a Register of Medical
Practitioners.
29. Scottish Burial Reform and Cremation Society Ltd v Glasgow Corporation,
[1968] AC 138 (HL (Eng)) at 156, per Lord Wilberforce [Scottish Burial
Reform].
30. McGovern, supra note 16 at 333.
31. Re Greenpeace SC, supra note 1 at para 27, n 57. See also Re e
Foundation for Anti-Aging Research, supra note 18 at para 16, Ellis J; Re
Family First New Zealand, [2015] NZHC 1493 at para 21 [Re Family
2015]; Re Education New Zealand Trust, [2010] NZHC 1097 at para 24
[Re Education]; Re New Zealand Computer Society Inc, [2011] NZHC
161 at para 13; Re Queenstown Lakes Community Housing Trust, [2011]
3 NZLR 502 (HC) at para 32 [Re Queenstown]; Liberty Trust v Charities
Commission, [2011] 3 NZLR 68 (HC) at para 99 [Liberty Trust].
32. Latimer HC, supra note 5 at para 83, referring to Scottish Burial Reform,
supra note 29 at 150; and Latimer CA, supra note 12 at paras 34-36.
33. See Latimer HC, ibid.
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Importantly, in addressing this evidential question, and in
recognition, perhaps, that the courts are the source of the law on the
definition of charitable purpose, charities were able to access a full de
novo oral hearing of evidence before a trier of fact, either the Taxation
Review Authority or the High Court.34 Such a hearing allowed for the
evidence of witnesses, including expert witnesses, the decision maker, or
both, to be tested by cross-examination if the circumstances required it.
In addition, charities were not prevented from adducing evidence simply
because it had not been provided earlier.35 is process allowed for an
evidential platform from which decision-makers could make a robust,
informed decision as to whether any particular purpose operated for the
public benefit.36
e ‘public’ limb of the public benefit test required a comparative
weighing of public and private benefits.37 Incidental private benefits were
not inconsistent with charitable purpose.38 It was acknowledged by the
Court of Appeal that “any application of funds by a charitable trust is
likely to be for the private pecuniary profit of someone”.39 It was also
acknowledged that qualifying public benefit could be achieved indirectly
by means of direct assistance to individuals.40
34. See section 138B, and the definition of “hearing authority” in section 3 of
the Tax Administration Act 1994, 1994/166 (NZ).
35. See Charities Registration Board, supra note 5 at para 44. Note that section
138G of the Tax Administration Act 1994, ibid originally contained an
‘evidence exclusion rule’, which was subsequently relaxed to an ‘issues and
propositions of law’ exclusion rule only.
36. In this regard, see in particular Latimer HC, supra note 5 at paras 81-131,
this point upheld by the Court of Appeal in Latimer CA, supra note 12
at paras 30-41 and not in issue before the Privy Council in Latimer PC,
supra note 16.
37. See e.g. the arguments of counsel for the plaintiff in Latimer CA, ibid at
para 35, which arguments were upheld by the Court of Appeal at para 36.
38. Latimer PC, supra note 16 at para 35; and Accountants, supra note 18 at
152.
39. Hester v CIR, [2005] 2 NZLR 172 (CA) at 181.
40. See e.g. Medical Council, supra note 26 and the assistance purpose in
Latimer CA, supra note 12.
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C. Was ere a Political Purposes Exclusion?
It can also be seen at once that the two-step test for whether a purpose
is charitable does not specifically address the question of whether any
particular purpose is ‘political’.
e writer submits that, despite interpretations to the contrary, there
was in fact no political purposes exclusion in New Zealand law prior to
the Charities Act.
It is acknowledged that purposes to further the interests of a
particular political party or a particular candidate for political office were
excluded.41 However, beyond partisan political purposes, to say that a
purpose was ‘political’ in New Zealand was ‘code’. It simply meant that
the purpose in question had not met the public benefit test on the facts
of the particular case.
It is acknowledged that New Zealand case law had referred to the
dicta of Lord Parker in Bowman v Secular Society Ltd,42 that a trust for
the attainment of political objects is invalid, “because the Court has no
means of judging whether a proposed change in the law will or will not
be for the public benefit”.43
For example, the Court of Appeal in Molloy44 held that the main
purpose of the Society for the Protection of the Unborn Child was to
vigorously oppose a change in the law in relation to abortion, a public
and very controversial issue at the time.45 After referring to Bowman, the
Court of Appeal held this purpose to be political, and not charitable, on
41. See Molloy, supra note 5 at 695; and Re Collier, supra note 16 at 90. See
also NZ, Second Report of the Working Party on Registration, Reporting and
Monitoring of Charities (31 May 2002) at 12 [NZ, Second Report of the
Working Party].
43. See In Re Wilkinson (Deceased), Perpetual Trustees Estate and Agency Co
of New Zealand Ltd v League of Nations Union of New Zealand, [1941]
NZLR 1065 (SC) [Re Wilkinson]; Knowles v Commissioner of Stamp
Duties, [1945] NZLR 522 (SC) [Knowles]; and Molloy, supra note 5.
44. Molloy, ibid.
45. Ibid at 694-95.
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the basis that the Court could not judge the public benefit.46
However, the writer respectfully submits that this decision, and
the earlier decisions of Knowles,47 regarding temperance, and in Re
Wilkinson,48 regarding the failed League of Nations, did not translate into
a ‘hard and fast rule’ that all purposes directed at law reform or changes
in government policy were inherently unable to be charitable in New
Zealand, forevermore.
With respect, conclusions to the contrary appear to have overlooked
the subsequent decision of the New Zealand Court of Appeal in Latimer
CA.49
e Latimer CA litigation concerned the Crown Forestry Rental
Trust, one of the purposes of which was to assist Māori, the Indigenous
population of New Zealand, in the preparation, presentation and
negotiation of claims before the Waitangi Tribunal involving licensed
Crown forest land (the “assistance purpose”). e High Court upheld
the Crown Forestry Rental Trust’s argument that providing assistance to
the defined class of Māori claimants was an integral part of achieving
the wider public benefit of settling historical grievances arising under
the Treaty of Waitangi (the “Treaty”).50 e Court of Appeal upheld
the assistance purpose as charitable, and not ‘political’, even though the
process of Treaty settlement was highly controversial at the time, and
always leads, without exception, to an Act of Parliament being enacted
to settle the wrongs.51
46. Ibid at 695-96.
47. Knowles, supra note 43.
48. Re Wilkinson, supra note 43.
49. Latimer CA, supra note 12. See e.g. Re Family First New Zealand, [2018]
NZHC 2273 at paras 4, 10 [Re Family HC]; Re Greenpeace New Zealand
Incorporated, [2011] 2 NZLR 815 (HC) at para 44 [Re Greenpeace HC];
Re Greenpeace of New Zealand Inc, [2013] 1 NZLR 339 (CA) at paras 56,
60-64 [Re Greenpeace CA]; Re Greenpeace SC, supra note 1 at paras 39-47;
and Re Draco Foundation (NZ) Charitable Trust, [2011] NZHC 368 [Re
Draco].
50. Latimer HC, supra note 5 at para 95.
51. As noted by Justice Williams, speaking extra-curially at the “Charitable
purpose forum” organised by the Charities Commission in April 2012.
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Clearly a controversial purpose directed towards law reform was
not inherently incapable of being charitable in New Zealand law. To the
contrary, what the cases demonstrate is the inadvisability of attempting
to draw hard and fast lines in an inherently equitable area of law.
As demonstrated by the decision of the House of Lords in National
Anti-Vivisection Society52 where a purpose of abolishing vivisection was
held to be detrimental to the public, the court sometimes can judge
whether a proposed change in the law will or will not be for the public
benefit.53 A policy not to do so has been described as a “judicial cop
out”.54
Further, as subsequently acknowledged by the New Zealand Supreme
Court,55 the decision in Molloy seems correct in its factual context. e
topic of abortion was extremely divisive in New Zealand society at the
relevant time.56 e writer recalls news media reports of doctors’ houses
being burned. It seems understandable in all the circumstances that the
Court might have considered such an issue not appropriately justiciable.
Similarly, while controversy may have been a factor in the Court of
Appeal’s decision, this did not translate into a ‘hard and fast rule’ that
controversial purposes were inherently unable to be charitable.
Controversy and law and policy reform were simply factors to be
taken into account in analysing public benefit. e writer submits that
the decision in Molloy is simply authority for the proposition that the
public benefit test was not met on the facts of that particular case, with
the Court of Appeal using a shorthand expression ‘political’ to convey
that particular point.
52. National Anti-Vivisection Society, supra note 28.
53. See e.g. the comments of Lord Wright in ibid at para 47.
54. Attorney-General for New South Wales v e NSW Henry George Foundation
Ltd, [2002] NSWSC 1128 (Austl) at para 63 [Henry George Foundation].
55. Re Greenpeace SC, supra note 1 at para 73.
56. Re Greenpeace HC, supra note 49 at para 45.
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In addition, the courts have clearly held that the definition of
charitable purpose is not static and is constantly developing.57 e
decision in Molloy and its 1941 and 1945 predecessors58 predated
important developments in New Zealand, such as: (1) the 1985 changes
to standing orders which reorganised the system of Select Committees,
opening up their proceedings to the public and the media;59 (2) the
passing of the New Zealand Bill of Rights Act 199060 and the Human
Rights Act 1993;61 (3) developments in Australia (ultimately culminating
in the decision of the High Court of Australia in Aid/Watch Incorporated
v Commissioner of Taxation62 and its subsequent codification);63 (4) New
Zealand’s ratification of a number of international treaties;64 and (5) a
developing awareness of the importance of civil society participating in
the democratic process in a participatory democracy.
Coupled with mounting criticism of any political purposes exclusion,
there was ample authority available to support the proposition that there
was no political purposes exclusion in New Zealand law prior to the
57. See e.g. Re Greenpeace SC, supra note 1 at para 23; Molloy, supra note 5 at
695; and DV Bryant Trust Board v Hamilton City Council, [1997] 3 NZLR
342 (HC) at 348.
58. Re Wilkinson, supra note 43; Knowles, supra note 43; and Molloy, supra
note 5.
59. See Geoffrey Palmer, Unbridled Power: An Interpretation of New Zealand’s
Constitution and Government, 2d (Oxford University Press, 1990).
60. 1990/109 (NZ) [Bill of Rights].
61. 1993/82 (NZ).
63. Subsections 12(1)-(3) of the Charities Act 2013, 2013/100 (Austl) define
charitable purpose to mean the purpose of promoting or opposing
a change to any matter established by law, policy or practice in the
Commonwealth, a State, a Territory or another country, if the change is in
furtherance or in aid of, or in opposition to, a charitable purpose.
64. Such as the International Covenant on Civil and Political Rights, 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976) and
the Universal Declaration on Human Rights, 10 December 1948, GA Res
217A (III) UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71.
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Charities Act.65
Importantly, the public benefit test, and therefore any exclusion from
the public benefit test on ‘political’ grounds, applied to purposes, not to
activities.66 is explains the reference to a “political purposes exclusion”.67
Charities were not prevented from applying political means in furthering
purposes that were acknowledged to be charitable.68 Indeed, many
important pieces of law reform and changes in government policy in
New Zealand were achieved through the advocacy of charities prior to
65. See e.g. Re Collier, supra note 16 at 89-90; Public Trustee v Attorney-
General of New South Wales, [1997] 42 NSWLR 600 (SC (Austl)); Henry
George Foundation, supra note 54 at paras 63-64. See also subsequent
developments such as Victorian Women Lawyers’ Association Inc v
Commissioner of Taxation, [2008] FCA 983 at paras 128-29; and Re
Greenpeace HC, supra note 49 at para 59.
66. Lord Parker’s dicta in Bowman, supra note 42 at 442 referred to “political
objects” not activities, as noted in Canada, Minister of National Revenue,
Report of the Consultation Panel on the Political Activities of Charities,
(Ottawa: Consultation Panel on the Political Activities of Charities,
2017) at en 13, online:
charities-giving/charities/about-charities-directorate/political-activities-
consultation/consultation-panel-report-2016-2017.html#ndnts>.
67. Re Greenpeace SC, supra note 1, n 119, 128 [emphasis added].
68. See e.g. the comments of Atkin LJ in Commissioners of Inland Revenue v
Yorkshire Agricultural Society, [1928] 1 KB 611 (CA (Eng)) at 632: “[i]t is
perfectly consistent with the main object of the Society being one for the
promotion of agriculture generally, that in order to carry out its object it
should watch and advise on legislation affecting agriculture”. See also the
comments of Slade J in McGovern, supra note 16 at 340: “the mere fact
that trustees may be at liberty to employ political means in furthering
the non-political purpose of a trust does not necessarily render it non-
charitable”. See also NZ, Second Report of the Working Party, supra note
41 at 12 referring to the permissibility of “advocacy for any cause that is
itself charitable”, and the fact that, in contrast to the position taken by
the Court of Appeal in Re Greenpeace CA, supra note 49 at para 42, the
definition of charitable purpose suggested by the Working Party would
not alter the scope of charitable purpose but would be “clearly stating the
position that has developed through 400 years of case law”.
16
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the passing of the Charities Act.69
D. e ‘Spirit and Intendment’ Test
If the purpose in question was found to operate for the benefit of the
public under the first limb of the two-step test, the question then turned
to the second step: is the purpose ‘charitable’ in the sense of coming
within the spirit and intendment of the preamble.
In this context, the Court of Appeal made it clear that it is “important
to be guided by principle, rather than by a detailed analysis of decisions
on particular cases”.70
Purposes for the relief of poverty, the advancement of education and
the advancement of religion were accepted as coming within the spirit
and intendment of the preamble and therefore charitable.71 For other
purposes, the courts proceeded first by seeking an analogy with purposes
enumerated in the preamble. ey then went further and were satisfied
if they could find an analogy with previous cases found to be within the
spirit and intendment of the preamble. In fact, the gradual extension by
analogy had proceeded so far that there were “few modern reported cases
where a clearly specified object for the benefit of the public at large and
not of individuals was not held to be within the spirit and intendment”
72 of the preamble.
e law in New Zealand had in fact extended to the point where
there were two approaches to determining whether a purpose was within
the spirit and intendment of the preamble; the first was the analogy
approach and the second was the presumption of charitability.
69. Although, in the environment which exists in New Zealand at the time of
writing, it seems inadvisable to mention any names.
70. Medical Council, supra note 26 at 314, cited with approval in Latimer CA,
supra note 12 at para 39.
71. See e.g. the statutory definition of charitable purpose in section OB 1 of
the Income Tax Act 2004, supra note 6.
72. Accountants, supra note 18 at 157 referring to Scottish Burial Reform, supra
note 29 at 147.
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e presumption of charitability is described in the following terms:
[e]ven in the absence of an analogy with the purposes mentioned in the Preamble
to the Statute of Elizabeth, objects beneficial to the public, or of public utility,
are prima facie within the spirit and intendment of the Preamble, and in the
absence of any ground for holding that they are outside that spirit and intendment,
are charitable at law.73
A presumption of charitability was not part of Canadian law.74 However,
the fact that it was firmly part of New Zealand law was acknowledged
by the New Zealand tax authority, the Inland Revenue Department
(“IRD”), in its Tax and charities 2001 discussion document:
[p]erhaps more importantly, the court confirmed that the correct approach
today is that objects that are beneficial to the community or are of public utility
are prima facie charitable under the fourth category unless there are good reasons
73. Margaret A Soper, “Charities” in e Laws of New Zealand (Wellington,
NZ: Butterworths, 2011) at para 12, citing Morgan v Wellington City
Corporation, [1975] 1 NZLR 416 (CA) at 419-420 [emphasis added].
74. Vancouver Society, supra note 14 at paras 47-48.
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why they should not be.75
In other words, the requirement to be charitable within the spirit and
intendment of the preamble was determined in New Zealand by analogy
with purposes previously found to be charitable but, even in the absence
of an analogy, objects beneficial to the public were prima face held to be
within the spirit and intendment of the preamble, in the absence of any
ground for holding otherwise.
75. NZ, Policy Advice Division, Tax and Charities: A Government Discussion
Document on Taxation Issues Relating to Charities and Non-profit Bodies
by Hon Dr Michael Cullen, Hon Paul Swain & John Wright MP
(Wellington: Inland Revenue Department, 2001) at para 3.17 [Tax and
charities 2001 discussion document], referring to the decision of the
Court of Appeal in Medical Council, supra note 26 [emphasis added].
Other authority for recognition of the presumption of charitability in
New Zealand law includes: Auckland Medical Aid Trust v Commissioner
of Inland Revenue, [1979] 1 NZLR 382 (SC) at 388 [Auckland Medical
Aid]; and Latimer HC, supra note 5 at paras 106, 131. Counsel for the
Commissioner of Inland Revenue in the Latimer CA, supra note 12,
litigation argued before the Court of Appeal that the High Court had
erred in adopting the presumption of charitability, suggesting that, in the
Medical Council case, McKay J, although discussing the presumption of
charitability, had not in fact followed it and had actually proceeded by
reference to analogy. However, the Court of Appeal in Latimer CA, found
at para 39 that it was unnecessary to reach a view on this point. eir
Honours noted that omas J had certainly adopted the presumption of
charitability approach, McKay J had referred with apparent approval to a
passage in Halsbury’s to that effect, and Keith J had concurred with both
McKay J and omas J. eir Honours held (agreeing with McKay J’s
view, at 314) that in applying the spirit and intendment of the preamble,
it is important to be guided by principle rather than by a detailed
analysis of decisions on particular cases. In finding that the relevant
purpose was charitable, and although a reference was made to there
being “some analogy”, the Court of Appeal did not clearly apply either
the presumption of charitability or the analogy test. However, arguably,
the relevant “principle” applied by the Court of Appeal is that purposes
beneficial to the public are presumed to be charitable unless there are
grounds for holding otherwise (that is, the presumption of charitability).
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Importantly, the presumption of charitability does not equate with
a single test of public benefit. It is simply an alternative and “more
intellectually honest”76 means of satisfying the second limb of the two-
step test.
E. Summary
To summarise, prior to the Charities Act, the writer submits that there
was no ‘political purposes exclusion’ in New Zealand law. A finding that
a purpose was ‘political’ simply meant that the public benefit test was not
met on the facts of the particular case. In principle, charities were able
to engage in unlimited non-partisan advocacy activity, provided it was
carried out in furtherance of their stated charitable purposes.
IV. Was the Position Changed by Passing the
Charities Act?
e definition of charitable purpose in New Zealand prior to the Charities
Act was acknowledged to be very broad.77
In this respect, the New Zealand position differed from the position
in Canadian jurisprudence, which appears to have taken a more narrow
and restrictive approach to the definition.78 Although the difference in
approach may be partly attributable to the different statutory frameworks
applicable in the respective jurisdictions, a key reason for the difference
appears to be the inability of Canadian charities to access a de novo oral
76. Re Collier, supra note 16 at 95.
77. Tax and charities 2001 discussion document, supra note 75 at para 5.1.
78. See e.g. Vancouver Society, supra note 14 at paras 196-98, 200.
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hearing of evidence.79
In New Zealand in 1996, a majority of the Court of Appeal held
that the income of the Medical Council of New Zealand (the “Medical
Council”) was exempt from income tax. Although the principal statutory
function of the Medical Council was to maintain a register of qualified
medical practitioners, which provided private benefits to those individuals,
the Court of Appeal interpreted the purpose of the relevant constituting
legislation more widely, finding the true purpose of the Medical Council
to be the safeguarding of the health of the community. is purpose was
found to be charitable.80
Some years earlier, the New Zealand Court of Appeal had held the
purposes of the New Zealand Council of Law Reporting to be charitable.81
IRD’s lack of success in these Court of Appeal cases led IRD to
surmise, in its Tax and charities 2001 discussion document, that case
law “may have expanded the boundaries of what is charitable to such an
extent that it is now too easy to become a charity”.82 is led IRD to put
forward two proposals for changing the definition of charitable purpose,
to limit the “fiscal privileges” accorded to charities to those charitable
purposes that accorded with “current objectives”.83
79. See e.g. Human Life International in Canada Inc v MNR, [1998] 3 FC 202
[Human Life International], Strayer JA: “[t]he Court must therefore review
the relevant questions of law and fact without the benefit of any findings
of fact by a trial court and indeed without the benefit of any sworn
evidence”. See also the Report of the Consultation Panel on the Political
Activities of Charities, supra note 66, Recommendations 2(b) and 4:
the standard of review … favours the government by requiring a judicial
review application to the Federal Court of Appeal. e Federal Court of
Appeal is not mandated to review whether the government’s decision is correct,
but only whether it is reasonable. An appeal to the Tax Court of Canada
would allow charities to fully argue why the decision of the Government
is wrong and balance the position of the parties through this process.
80. Medical Council, supra note 26 at 309, 318.
81. Commissioner of Inland Revenue v New Zealand Council of Law Reporting,
[1981] 1 NZLR 682 (CA).
82. Tax and charities 2001 discussion document, supra note 75 at paras 4.2,
5.11.
83. Ibid at para 4.3.
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Under both these proposals, the Government would have been
permitted to override any registration and ‘deem’ a particular entity
not to be charitable.84 IRD argued this approach would be “in keeping
with recognising the tax exemption as an expenditure decision by the
government and would allow the government to target those entities
undertaking activities that it wishes or does not wish to support”.85
is sentiment may have been imported into the Charities Bill as
originally introduced in 200486 as the explanatory note to the original
Bill87 stated that the Charities Commission would “register and monitor
charitable entities … to ensure that those entities receiving tax relief
continue to carry out charitable purposes and provide a clear public
benefit”.88
However, it is not clear that any initial intention to limit fiscal
privileges in fact survived the Charities Bill’s passage through Parliament.
e Charities Bill as originally introduced was widely regarded to be
fundamentally flawed;89 it was almost completely rewritten at the Select
Committee stage in response to hundreds of submissions.90
is transformation casts doubt on the probative value of statements
previously contained in the explanatory note and on the first reading
of the Charities Bill. Certainly, it can be seen from the two-step test set
out above that “fiscal consequences”91 form no part of the common
84. Ibid at paras 5.5, 5.15 and at 9.
85. Ibid at para 5.5.
86. Charities Bill 2004 (108-1) (NZ) [Charities Bill].
87. Ibid.
88. Ibid, Explanatory Note, at 1.
89. NZ Select Committee, Report on Charities Bill 2004 (108-2) at 21; and
New Zealand, Parliamentary Debates, Hansard, 47-1, vol 625 (12 April
2005) at 19980 (Sue Bradford). See also the discussion in Regulating
Charities: e Inside Story, supra note 25, ch 10.
90. Report on Charities Bill 2004 (108-2), ibid; and New Zealand,
Parliamentary Debates, Hansard, 47-1, vol 625 (12 April 2005) at 19944
(Georgina Beyer).
91. Re Greenpeace SC, supra note 1 at paras 30, 52.
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law test for whether a purpose is charitable.92 is is understandable,
conceptually, as income tax post-dated the common law concept of
charity by at least a century. It is also understandable in principle. As
noted by Justice Mackenzie in Re Queenstown,93 Parliament has seen fit to
adopt the common law definition of charity; to the extent that Parliament
has elsewhere legislated that taxation consequences are determined
by reference to that definition, those consequences must follow the
application of the common law principles which govern the definition.
Taxation consequences should not play a part in the application of those
common law principles.
A similar point was made by Justice Mallon in Liberty Trust.94 In
that case, Her Honour found that Liberty Trust’s purposes advanced
religion and were therefore presumptively charitable. Her Honour then
noted that this presumption was “not displaced merely because the Court
may have a different view as to the social utility of the Liberty Trust
scheme and whether it is an activity deserving of the fiscal advantages
that charitable status brings”.95
Importantly, none of IRD’s 2001 suggestions for amending the
definition of charitable purpose were accepted. e Select Committee
considering the Charities Bill made it clear that the definition of charitable
purpose was not intended to be changed.96 Instead, the long-standing,
inclusive, statutory definition of charitable purpose was uplifted from
the income tax legislation into section 5 of the Charities Act.97 In other
words, the statutory definition was not substantively changed; the Courts
have confirmed that the Charities Act did not change the common law
92. Compare the comments of the Supreme Court in Re Greenpeace SC, supra
note 1 at para 30.
93. Re Queenstown, supra note 31 at para 78.
94. Liberty Trust, supra note 31.
95. Ibid at para 101. See also Pemsel, supra note 7 at 591, Lord Macnaghten:
“[w]ith the policy of taxing charities I have nothing to do”.
96. Report on Charities Bill 2004 (108-2), supra note 89, at 3.
97. See Re Greenpeace HC, supra note 49 at para 38.
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definition of charitable purpose.98
Accordingly, the definition of charitable purpose that IRD
acknowledged was very broad survived the passing of the Charities Act.
e key change made by the legislation was simply that, from 1 July 2008,
charities had to be registered with the Charities Commission (as it was
then) in order to be eligible for the charitable exemptions from income
tax.99 In addition, registered charities had to make certain information
publicly available on the charities register.100 is information would
enable charities to be monitored, to ensure that they were continuing to
act in furtherance of their stated charitable purposes over time.101
A. Unintended Consequences
Despite clarity that the pre-existing common law definition of charitable
purpose continued, the Charities Act is otherwise an example of how
‘fast law does not make good law’. e substantial changes made to the
Charities Bill at the Select Committee stage were not subject to proper
consultation102 and, together with further minor, but extensive, changes
98. Re Greenpeace SC, supra note 1 at paras 16-7; Re Family 2015, supra
note 31 at para 21; Re Education, supra note 31 at para 13; and Charities
Registration Board, supra note 5 at para 10.
99. See paragraph CW 41(5)(a) and subsection CW 42(1) of the Income Tax
Act 2007, supra note 8.
100. See sections 40-42A of the Charities Act, supra note 4, containing the
requirements for registered charities to file annual returns and notify
certain changes.
101. Lack of information to monitor whether charities were continuing to act
in furtherance of their stated charitable purposes over time was the key
issue that the Charities Act, ibid was intending to address. See the NZ,
Report by the Working Party on Registration, Reporting and Monitoring of
Charities (28 February 2002) at 21-22. See also the NZ, Report to the
Minister of Finance and the Minister of Social Welfare by the Working Party
on Charities and Sporting Bodies (November 1989) at iv-v, 10, 21, 63, 67;
Tax and charities 2001 discussion document, supra note 75 at para 8.7;
Charities Act, supra note 4, s 10(h); and Re e Foundation for Anti-Aging
Research, supra note 18 at para 88. See also the discussion in Regulating
Charities: e Inside Story, supra note 25, ch 10.
102. Report on Charities Bill 2004 (108-2), supra note 89, at 20.
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made by Supplementary Order Paper,103 were passed through under
urgency, with all final stages occurring on one day (12 April 2005). e
comment was made in Parliament that “we do not really know what we
are passing tonight, or what the implications are”.104
In addition, the 14 years since the Charities Act was passed have been
characterised by a series of ‘kneejerk’ amendments that have similarly
been rushed through under urgency without proper consultation.105
e writer submits that the net result is a Charities Act that is replete
with unintended consequences.
ese unintended consequences have given rise to uncertainty as to
whether provisions such as subsections 5(3), 18(3), 5(2A) and section 59
of the Charities Act might have inadvertently changed the law. e writer
submits that the answer is no, for the reasons discussed below.
B. Subsection 5(3)
Subsections 5(3) and (4) of the Charities Act provide that a non-charitable
purpose will not prevent registration if the purpose is “merely ancillary
to a charitable purpose”. Subsections 5(3) and (4) were inserted at the
Select Committee stage in response to concerns by submitters that the
Charities Act regime might be used as a means for government to exercise
political control of the charitable sector.106 e subsections were intended
to codify the rule regarding ancillary purposes, discussed above; they were
not intended to change the law in any way.107
103. New Zealand, Parliamentary Debates, Hansard, 47-1, vol 625 (12 April
2005) at 19950 (Sue Bradford).
104. New Zealand, Parliamentary Debates, Hansard, 47-1, vol 625 (12 April
2005) at 19981 (Sue Bradford).
105. See e.g. Statutes Amendment Bill 2015 (71-1) (NZ); Charities Amendment
Bill (No 2) 2012 332-3C (NZ) (which began as the Crown Entities Reform
Bill 2011 332-1 (NZ) [Crown Entities Reform Bill]); and the Statutes
Amendment Bill (No 2) 2011 271-2 (NZ) [Statutes Amendment Bill (No
2)].
106. New Zealand, Parliamentary Debates, Hansard, 47-1, vol 616 (30 March
2004) at 12108 (Sue Bradford); and Report on Charities Bill 2004 (108-
2), supra note 89, at 4.
107. Report on Charities Bill 2004 (108-2), ibid.
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Subsection 5(3) included the words “for example, advocacy”, in
brackets, with the specific intention of reassuring the charitable sector
that they would continue to be able to undertake advocacy work in
support of their charitable purposes.108
However, the bracketed words appear to have been used by Charities
Services as legislative authority for the imposition of a strict political
purposes exclusion. Under the Charities Act regime, many charities were
surprised to find themselves declined registration or deregistered for
engaging with the democratic process,109 despite clear indications that
the definition of charitable purpose was not intended to be changed.
It seems unlikely that a change so significant would have been made
by way of parenthetic illustration without further articulation.110 e
more likely explanation is that the words “for example, advocacy”111 were
intended simply to confirm that, in the rare situation where advocacy
activity might have become viewed as a purpose in itself, this would not
prevent registration if such a purpose could be said to be ancillary to the
charitable purposes of the organisation, as discussed above.
e provision did not provide a legislative bar on such an advocacy
purpose ever being charitable in itself.112
In other words, the words “for example, advocacy”113 did not codify
a political purposes exclusion and should, at the very least, have been no
impediment to charities continuing to advocate in furtherance of their
108. New Zealand, Parliamentary Debates, Hansard, 47-1, vol 625 (12 April
2005) at 19941 (Judith Tizard): the changes would “make it clear that the
Commission will not prevent an organisation from being able to register
if it engages in advocacy as a way to support and undertake its main
charitable purpose” at 19941. See also Report on Charities Bill 2004 (108-
2), supra note 89, at 4.
109. See e.g. National Council of Women of New Zealand Incorporated v Charities
Registration Board, [2014] NZHC 1297 at para 17.
110. See the arguments of counsel for Greenpeace in Re Greenpeace SC, supra
note 1 at para 54.
111. Charities Act, supra note 4, s 5(3).
112. As was subsequently found to be the case by the Supreme Court in Re
Greenpeace SC, supra note 1 at paras 56-58.
113. Charities Act, supra note 4, s 5(3).
26
Barker, Advocacy by Charities
stated charitable purposes as they had always done.
C. Subsection 18(3)
Subsection 18(3) of the Charities Act requires that, in assessing
applications for registration, Charities Services must “have regard” to a
charity’s activities. Unfortunately, subsection 18(3) did not specify what
Charities Services is to “have regard” to activities for.
Subsections 50(1)(a) and (2)(a) of the Charities Act similarly enable
Charities Services to inquire into a charity’s activities, but without
specification as to why.
ese provisions appear to have encouraged Charities Services to
assess entities’ activities to ascertain whether those activities are ‘charitable’
As a result, many worthy charities have been deregistered or declined
registration on the basis of their activities, even though such activities
were carried out in good faith in furtherance of their stated charitable
purposes.114
It is axiomatic that the common law recognises a distinction between
purposes and activities; this distinction is reflected in subsection 13(1) of
the Charities Act, which sets out the essential requirements for registration,
and requires purposes to be charitable, not activities.
When the history of the Charities Act regime is examined, it is
clear that, beyond “serious wrongdoing”115 as defined, the reason for
considering activities is to ensure that charities are continuing to act in
114. Published decisions of the Charities Registration Board can be found
on Charities Services’ website (2019), online:
charities-in-new-zealand/legal-decisions/view-the-decisions/>. However,
these decisions do not include the bulk of decisions, which are made by
Charities Services under delegation from the Board under section 9 of the
Charities Act, ibid.
115. See the definition of “serious wrongdoing” in section 4 of the Charities
Act, ibid.
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furtherance of their stated charitable purposes over time.116 It is not to
ascertain whether those activities are ‘charitable’.
ere is, in fact, no such thing as a ‘charitable activity’. Activities
only make sense in the context of the purpose in furtherance of which
they are carried out.117 In limited exceptional circumstances, activities
may assist in determining what a charity’s purposes are, or whether those
purposes are charitable, as discussed above. But there is no indication
that subsection 18(3) and section 50 were intended to “wreak some
fundamental change in approach or a move away from the fundamental
‘purposes’ focus of the charities inquiry”.118
D. Subsection 5(2A)
Subsection 5(2A) of the Charities Act provides that the promotion of
amateur sport may be a charitable purpose “if it is the means by which
a charitable purpose … is pursued”. Subsection 5(2A) was inserted into
the legislation by the Charities Amendment Act 2012,119 with effect from
25 February 2012.120
116. See the NZ, Report by the Working Party, supra note 101 at 21-22. See also
the NZ, Report to the Minister of Finance, supra note 101 at iv-v, 10, 21,
63, 67; Tax and charities 2001 discussion document, supra note 75 at para
8.7; Charities Act, supra note 4, s 10(h); and Re e Foundation for Anti-
Aging Research, supra note 18 at para 88.
117. As noted by the Supreme Court of Canada in Vancouver Society, supra
note 14 at para 152:
the character of an activity is at best ambiguous; for example, writing a letter
to solicit donations for a dance school might well be considered charitable, but
the very same activity might lose its charitable character if the donations were
to go to a group disseminating hate literature. In other words, it is really the
purpose in furtherance of which an activity is carried out, and not the character
of the activity itself, that determines whether or not it is of a charitable nature.
See also the discussion in Susan Barker, “e Myth of ‘Charitable
Activities’” (2014) New Zealand Law Journal at 304, online (pdf):
lawnewzealand.co.nz/resources/e%20myth%20of%20charitable%20
activities.PDF>.
118. Re e Foundation for Anti-Aging Research, supra note 18 at para 86.
119. 2012/4 (NZ).
120. Ibid, s 2.
28
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e Court of Appeal considered this amendment to be evidence of a
political purposes exclusion in New Zealand law.121 However, the writer
respectfully submits that the history of the provision does not support
that conclusion.
e process of inserting subsection 5(2A) began quietly in early 2010
with a “technical review of the Charities Act”, aimed at “improving the
operation of the legislation and charities register”.122 Contemporaneously,
Cabinet approved a first principles review of the Charities Act, to take place
in 2015.123 e promised first principles review was publicly announced
some months’ later, in November 2010.124 In December 2010, the High
Court of Australia issued its decision in Aid/Watch.
e New Zealand technical review culminated in the Statutes
Amendment Bill (No 2)125 which was introduced into Parliament on 22
February 2011, and referred to the Government Administration Select
Committee in April 2011. By definition, items included in a Statutes
Amendment Bill should be minor, non-controversial and technical
amendments that do not affect the substance of the law or people’s rights
and obligations.126
A few weeks later, on 6 May 2011, the High Court issued its decision
in Re Greenpeace HC,127 declining to follow the decision of the High Court
121. Re Greenpeace CA, supra note 49 paras 56-57.
122. NZ Cabinet Office, “Minute of Decision” CAB Min (10) 35/3A at para
1.1.
123. NZ Cabinet Office, “Minute of Decision”, CAB Min (10) 12/6; NZ
Cabinet Social Policy Committee, “Minute of Decision”, SOC Min
(10) 6/4; and NZ Cabinet Office, “Minute of Decision”, CAB Min (10)
35/3B.
124. Tariana Turia, “Charities Commission Annual General Meeting” (1
December 2010), online: Beehize.govt.nz
charities-commission-annual-general-meeting-0>.
125. Statutes Amendment Bill (No 2), supra note 105.
126. See the NZ, “Report of the Government Administration Committee on
the Statutes Amendment Bill (No 2) 271-1” (6 July 2011) at 1; and NZ,
House of Representatives, Standing Orders, s 305(2) (2017). See also NZ
Select Committee, Report on Charities Amendment Bill 2016 71-2B at
1-2.
127. Re Greenpeace HC, supra note 49.
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of Australia in Aid/Watch. Greenpeace of New Zealand Incorporated
(“Greenpeace”) appealed to the Court of Appeal.
On 31 May 2011, the Government announced that it would
disestablish the Charities Commission and transfer its functions to the
Department of Internal Affairs.128 e vehicle to effect this change, the
Crown Entities Reform Bill,129 was introduced into Parliament a few weeks
later in September 2011.
e Statutes Amendment Bill (No 2)130 received its second reading on
16 February 2012, following which the proposed amendments to the
Charities Act, including subsection 5(2A), were removed into a separate
Charities Amendment Act 2012 and passed into law.131
Contemporaneously, the passage of the Crown Entities Reform Bill
moved quickly, receiving its third reading on 30 May 2012 and passing
into law on 6 June 2012. e Charities Commission was disestablished
from 1 July 2012.
In November 2012, only four months after the Charities Commission
was controversially disestablished, and precisely 21 minutes after the
Court of Appeal delivered its decision in Re Greenpeace CA,132 the
promised first principles review of the Charities Act was controversially
cancelled.133
With respect, the disestablishment of the Charities Commission
and the cancelling of the first principles review of the Charities Act are
examples of kneejerk reactions that were rushed through without proper
consultation, against the strong opposition of the charitable sector. e
technical review is of a similar ilk.
128. “Government reviews more state agencies” (31 May 2011), online: Scoop
Parliament
reviews-more-state-agencies.htm>.
129. Crown Entities Reform Bill, supra note 105.
130. Statutes Amendment Bill (No 2), supra note 105.
131. e Charities Amendment Act 2012, supra note 119, received Royal Assent
on 24 February 2012.
132. Re Greenpeace CA, supra note 49.
133. Jo Goodhew, “No review of the Charities Act at this time” (17 November
2012), online: Beehive.govt.nz eview-
charities-act-time>.
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Barker, Advocacy by Charities
Subsection 5(2A) is an unhelpful amendment. On its face, it appears
to provide a statutory prohibition on the promotion of amateur sport
being considered charitable in and of itself, placing an unhelpful barrier
in the way of the socially cohesive and other public benefits that might
otherwise be derived from such promotion. In doing so, it puts New
Zealand out of step with other comparable jurisdictions which have
found such a purpose to be charitable by statute.134 Such a significant
amendment hardly seems minor, technical, non-controversial or non-
substantive, raising the question of why it was included in a Statutes
Amendment Bill, and why it was not subject to proper consultation.
Subsection 5(2A) appears to have been inserted in response to
reluctance by charitable organisations to fund sport in case doing so
might threaten their charitable status.135 e provision appears to reflect
Charities Services’ interpretation of the decision of the High Court in
Travis Trust v Charities Commission.136 In that case, the High Court found
that the promotion of the particular horse race in question was not a
charitable purpose in and of itself, unless it could be established that the
true intention was the promotion of a deeper purpose such as health,
education or animal welfare.137 On the facts before the Court, this was
not found to be the case; however, the writer respectfully submits that the
case is not authority for the proposition that the promotion of amateur
sport could never be charitable in New Zealand in and of itself.
Subsection 5(2A) is arguably another illustration of the inadvisability
of seeking to create ‘hard and fast’ rules in a nuanced and subtle area
of law. With respect, it is drawing a long bow to say that the provision
evidenced a political purposes exclusion in New Zealand law.138
134. See Charities Act 2011 (UK), c 25, ss 3(1)(g), 2(d); Charities Act 2006
(UK), c 50; Charities and Trustee Investment (Scotland) Act 2005, ASP 10,
ss 7(2)(h), 3(c); and Charities Act (Northern Ireland) 2008, c 12, ss 2(g),
3(d), as amended by the Charities Act (Northern Ireland) 2013, c 3.
135. Statutes Amendment Bill (No 2), supra note 105, Select Committee Report,
at 5.
136. [2008] 24 NZHC 1912.
137. Ibid.
138. Contrary to the finding in Re Greenpeace CA, supra note 49 at paras 56-
57, 60.
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E. Section 59
e most significant bearer of unintended consequences appears to have
been section 59, the provision which provides New Zealand charities
with a right of appeal.
As discussed above, prior to the Charities Act, charities were able to
access a full de novo oral hearing of evidence. e Charities Bill as originally
introduced would have continued this, by providing for charities to have
a right of appeal to the District Court.139 Appeals to the District Court
are normally conducted as a first instance de novo trial, which would
include a full hearing of oral evidence if any party so insisted.140
However, this formulation was changed at the Select Committee
stage in response to submissions. Submitters were concerned that to
restrict appeals to the District Court (whose decision was to be final)
would significantly impede the development of the common law of the
definition of charitable purpose as the definition of charitable purpose
derives from equity, which is traditionally the preserve of the High Court
and not the District Court; submitters were also concerned that charities
should continue to have recourse to the highest Court in the land on this
important issue.
e majority agreed that, given its experience in considering matters
relating to charitable entities, the High Court would be the most
appropriate forum for hearing Charities Act appeals. e majority also
agreed that the initial appeal should not be the final resort for charities.141
139. Charities Registration Board, supra note 5 at para 45 referring to Charities
Bill, supra note 86 at 38-41, cls 67, 69(6).
140. See Charities Registration Board, supra note 5 at para 45. See also Shotover
Gorge Jet Boats Ltd v Jamieson, [1987] 1 NZLR 437 (CA), considering
section 5 of the Lakes District Waterways Authority (Shotover River)
Empowering Act 1985, 1985/2 (NZ) at 440, line 15: “[t]here can be no
doubt that the District Court was intended to hear the case de novo, which
would include a full hearing of oral evidence if any party so insisted. at is
the normal way in which the District Court exercises its civil jurisdiction”
[emphasis added].
141. Report on Charities Bill 2004 (108-2), supra note 89, at 13-4. See also
Charities Registration Board, supra note 5 at para 46.
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However, in making this change from the District Court to the High
Court, the Select Committee did not clarify the nature of the hearing to
be conducted on appeal.142
e absence of any wording in section 59 regarding the nature of
the appeal means that appeals to the High Court under the Charities Act
are interpreted as general appeals subject to Part 20 of the High Court
Rules.143 General appeals to the High Court are usually conducted as a
rehearing. Part 20 of the High Court Rules precludes appellants from
having any automatic right to present any evidence to the Court that was
not before the decision-maker when it made its decision.144 Part 20 also
requires evidence to be presented by affidavit, rather than by witnesses
giving oral evidence and being available for cross-examination.145 ese
requirements are strict, but they are premised on an assumption that a
full oral hearing of evidence has already been undertaken at first instance
in the court or tribunal appealed from, in an adjudicated dispute between
two parties. However, this is not the case under the Charities Act. e
decision-maker (Charities Services or the Charities Registration Board)
does not adjudicate a dispute between two parties and, despite statutory
requirements to comply with the rules of natural justice,146 neither
conducts an oral hearing.147
In other words, replacing the words “District Court” with the words
“High Court” in section 59148 appears to have inadvertently removed
charities’ ability to access a trier of fact altogether.
is factor is significant because, as discussed above, whether an
entity qualifies for registration often turns on important questions of
fact. Facts are established by evidence and an oral hearing of evidence
allows that evidence to be tested. Section 59 in its current formulation
142. Charities Registration Board, ibid at paras 38-43.
143. High Court Rules, 2016/225 (NZ) [High Court Rules]. See generally Re
e Foundation for Anti-Aging Research, supra note 18 at paras 23-27.
144. High Court Rules, ibid.
145. Ibid.
146. Charities Act, supra note 4, ss 18(3)(b), 36.
147. Charities Registration Board, supra note 5 at para 20.
148. Charities Act, supra note 4.
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means that, among other things, charities have no means of adequately
testing the material that Charities Services finds from internet searches,
whether that material, and the conclusions drawn from it, are correct, or
what weight should be placed on it.149
e inability to call and test evidence also places Courts in a difficult
position, as they will often simply not have the evidence they need to
make a properly-informed decision as to whether any particular charity
is eligible for registration. is has led to an unhelpful development
whereby courts are referring cases back to the Charities Registration
Board for reconsideration in light of their judgment, causing further cost,
uncertainty and delay for the affected charities.150
ere is no indication in any of the material surrounding the Charities
Bill that Parliament intended to remove charities’ ability to access an oral
hearing of evidence when the right of appeal was changed from the District
Court to the High Court at the Select Committee stage. e removal of
charities’ ability to access a trier of fact appears instead to have been an
unintended consequence of the Select Committee’s attempt to strengthen
charities’ rights of appeal. As discussed above, the original Charities Bill
was almost completely rewritten at the Select Committee stage, and then
rushed through under urgency without proper consultation.
Inability to access a trier of fact places charities at a significant
disadvantage in the task of establishing important questions of fact,
such as what their purposes are, and how those purposes operate for the
public benefit. In this respect, New Zealand charities now seem to have
been placed at a similar disadvantage to that which has faced Canadian
charities, as discussed above.
is factor is exacerbated by the fact that, in New Zealand, an appeal
149. e results of Charities Services’ internet searches has been a significant
issue in cases decided under the Charities Act, ibid to date. See e.g. Re e
Foundation for Anti-Aging Research, supra note 18 at paras 74-75; and Re
Greenpeace CA, supra note 49 at para 31.
150. See Re Greenpeace CA, ibid; Re Greenpeace SC, supra note 1; and Re Family
HC, supra note 49. In both the Greenpeace and Family First cases, the
result of the Board’s reconsideration was to reach the same conclusion
which, in both cases, is now subject to further appeal.
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to the High Court, which must be lodged within 20 working days of
decision,151 is simply beyond the resources of most New Zealand charities.
e net effect is that, for the most part, charities simply have no practical
means of holding Charities Services accountable for its decisions.
e writer respectfully submits that these factors are causing New
Zealand charities law to become distorted. Decisions decided under the
current New Zealand Charities Act should be viewed through this lens of
inherent structural impediment, and in particular the lack of a sufficient
evidential platform.
F. Summary
To summarise, despite the difficulties inherent in many provisions in the
Charities Act, there is nothing to indicate that the common law definition
of charitable purpose was intended to be changed by the passing of that
legislation. e broad common law definition of charitable purpose that
existed prior to the Charities Act continued following the passing of the
legislation.152
Despite this, it is acknowledged that Charities Services applied a
strict political purposes exclusion in practice, even though, in the writer’s
submission, it was not necessary to do so as a matter of law.
However, the question is, following the Supreme Court decision,
what is the law now?
V. Did the Supreme Cour t Decision Change the
Law?
A. Greenpeace’s Purposes
At issue in the Re Greenpeace SC litigation were two of Greenpeace’s
purposes.
e first was originally in the following terms:
2.2 Promote the protection and preservation of nature and the environment,
including the oceans, lakes, rivers and other waters, the land and the air and
151. Charities Act, supra note 4, s 59(2)(a).
152. See e.g. Re Greenpeace CA, supra note 49 at para 44.
35
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flora and fauna everywhere and including but not limited to the promotion of
conservation, disarmament and peace.153
But was amended at the Court of Appeal stage of the litigation to read
as follows:
2.2 Promote the protection and preservation of nature and the environment,
including the oceans, lakes, rivers and other waters, the land and the air and
flora and fauna everywhere and including but not limited to the promotion of
conservation, peace, nuclear disarmament and the elimination of all weapons of
mass destruction.154
Although this purpose was clearly couched in terms of protecting the
environment, the references to the promotion of peace and the promotion
of disarmament were analysed separately.155
e second of Greenpeace’s impugned purposes was originally in the
following terms:
2.7 Promote the adoption of legislation, policies, rules, regulations and plans
which further the objects of the Society and support the enforcement or
implementation through political or judicial processes, as necessary.156
But was amended at the Court of Appeal stage to read as follows:
2.7 Promote the adoption of legislation, policies, rules, regulations and plans
which further the objects of the Society listed in clauses 2.1-2.6 and support
their enforcement or implementation through political or judicial processes, as
necessary, where such promotion or support is ancillary to those objects.157
All of Greenpeace’s other stated purposes were accepted as charitable,
either for the protection of the environment or the advancement of
education.158
153. Re Greenpeace SC, supra note 1 at para 77.
154. Re Greenpeace CA, supra note 49 at para 7 [emphasis added].
155. Application of Greenpeace of New Zealand Incorporated, (2010) Charities
Commission 7 (NZ), online (pdf): Charities Services
govt.nz/assets/Uploads/Greenpeace-decline-decision.pdf> at paras 36-50
[Greenpeace of New Zealand Incorporated 2010].
156. Re Greenpeace SC, supra note 1 at para 77.
157. Re Greenpeace CA, supra note 49 at para 7 [emphasis added].
158. Greenpeace of New Zealand Incorporated 2010, supra note 155 at para 34;
Re Greenpeace HC, supra note 49 at para 10; and Re Greenpeace CA, ibid at
paras 8, 16.
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B. e Commission’s Decision
e Charities Commission (as it was then) considered that if disarmament
and peace were promoted through ‘political’ means, such as through
a change of law or government policy, it could not be charitable.159
Although the Commission cited the decision in Latimer CA as authority
for the proposition that a purpose must be for the public benefit,160
the Commission did not refer to the Latimer CA decision in reaching
its conclusion that “the promotion of disarmament and peace”161 is a
political purpose and not charitable. e Commission referred instead
to the earlier decision of the High Court in Re Collier,162 which itself cast
significant doubt on any political purposes doctrine,163 and four cases
from other jurisdictions.
e Commission similarly considered that clause 2.7 was not
charitable, on the basis that it allowed for ‘political activities’; it considered
this was an ‘independent purpose’ that was not charitable.164
With respect, the Charities Commission’s approach appears to
conflate the concepts of purposes and activities. Under the pre-existing
law, the question should have been, were Greenpeace’s activities non-
partisan and carried out in furtherance of its stated charitable purpose of
protecting the environment. If so, there should have been no difficulty.165
C. e High Court Decision
Greenpeace appealed to the High Court but, following the hearing of the
appeal in November 2010, two developments occurred.
e first was the December 2010 decision of the High Court of
Australia in Aid/Watch. In that case, the majority held that there was no
159. Greenpeace of New Zealand Incorporated 2010, ibid at para 42.
160. Ibid at para 12.
161. Ibid at para 73.
162. Re Collier, supra note 16.
163. Ibid at 89-90.
164. Greenpeace of New Zealand Incorporated 2010, supra note 155 at paras 52,
73.
165. Re e Foundation for Anti-Aging Research, supra note 18 at para 88.
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general doctrine in Australia which excludes “political objects”166 from
charitable purposes, and the generation by lawful means of public debate
concerning the efficiency of foreign aid directed to the relief of poverty is
itself a charitable purpose.167
e second development was the decision of the High Court of New
Zealand in Re Draco,168 which was delivered on 15 February 2011.
D. Re Draco
e stated purposes of the Draco Foundation (NZ) Charitable Trust
(“Draco”) included to protect and promote democracy and natural
justice in New Zealand, and to raise awareness of and involvement in the
democratic process.169 Citing Bowman and Molloy, Justice Ronald Young
declined to follow the majority judgment in Aid/Watch, and held that
“New Zealand does have, as part of its law, a general doctrine which
excludes from charitable purposes, political objects”.170 His Honour
further considered that Aid/Watch may be limited to cases involving
the relief of poverty, and that the decision is reliant on “Australian
constitutional principles not applicable in New Zealand”.171
Ostensibly on the basis of an analysis of Draco’s activities, or the
‘prominence’ given to editorial pieces on its website,172 His Honour
went on to hold that expressing the opinion writer’s view on issues in
the public arena which are “essentially political”173 meant that Draco was
engaging in “partisan advocacy”.174 is activity was considered to be a
non-charitable purpose that was not ancillary to a charitable purpose.175
166. Aid/Watch, supra note 62 at paras 27, 28, 36, 40, 42, 46, 48, 49.
167. Ibid at paras 47-48.
168. Re Draco, supra note 49.
169. Ibid at para 4.
170. Ibid at paras 58-59.
171. Ibid at para 60.
172. Ibid at paras 63-64.
173. Ibid at para 67.
174. Ibid at para 68.
175. Ibid at paras 71, 79.
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With respect, the reasoning in the case is surprising. ere was
no mention of the two-step test for whether a purpose is charitable,
or any reference to the preamble. In fact, there was no mention of the
Latimer CA decision at all, or how it might have impacted interpretation
of the Bowman and Molloy decisions, particularly given developments
in New Zealand’s participatory democracy since 1917. ere was no
consideration of whether the purposes of Draco were entirely within
the four corners of the Bowman and Molloy decisions, or whether they
might have been distinguishable on their facts. e Re Draco decision in
fact appears to demonstrate how disadvantaged New Zealand charities
currently are by their inability to access a trier of fact, with the decision
repeatedly commenting on the lack of evidence necessary to demonstrate
the points contended for by the appellant trust.176
More fundamentally, the Re Draco decision appears to conflate the
concepts of purposes and activities, treating purposes, activities and
functions as more or less interchangeable.177 e decision also appears to
treat case law from other jurisdictions as if it were directly applicable in
New Zealand, without analysis of the different statutory framework on
which those decisions were based.178 is appeared to be particularly the
case with Canadian jurisprudence, which at the time contained a specific
statutory override of certain common law rules in a manner that was
simply not applicable in New Zealand.179
176. See e.g. ibid at paras 26, 32, 35, 48-49, 62, 77.
177. See e.g. ibid at paras 33-35, 47, 54, 66, 70-72, 78-79.
178. Ibid at paras 55, 75-76.
179. Subsection 149.1(6.2) of the Income Tax Act, supra note 3 required
a “charitable organization” to devote substantially all its resources to
“charitable activities carried on by it” with a carve-out for certain types
of ‘political activities’, applying an ‘ancillary’ test to activities rather than
purposes. As noted by the High Court of Australia in Aid/Watch, supra
note 62 at para 26, the special treatment in the Canadian statute law of
“political activities” distinguishes it from Australian legislation. Contrary
to the comments of the Court of Appeal in Re Greenpeace CA, supra
note 49 at para 45, the writer submits that the New Zealand position is
similarly distinguished.
39
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e writer respectfully submits that Re Draco must be regarded as a
‘rogue decision’.
E. Re Greenpeace HC
Nevertheless, the Re Draco decision appears to have influenced Justice
Heath in reaching his decision in Re Greenpeace HC a few weeks later in
May 2011.
In Re Greenpeace HC, the High Court began by noting that, in the
most general terms, Greenpeace’s object is to promote a philosophy
that encompasses protection and preservation of nature and the
environment.180
Justice Heath noted the questionable foundations of any political
purposes exclusion (albeit confusingly referring to it as a “political
activity exception”),181 and considered that, in modern times, there
was much to be said for the majority judgment in Aid/Watch.182 Unlike
Ronald Young J, Heath J had no real concerns that the political system
in Australia ought to bring about a different conclusion, having regard
to New Zealand’s mixed member proportional system of parliamentary
election, New Zealand’s reliance on Select Committees to enable policy
to be properly debated, and the existence of sections 13 and 14 of the Bill
of Rights,183 dealing respectively with freedom of thought, conscience and
religion, and freedom of expression.184
However, after referring to Re Draco, His Honour stated that he felt
constrained to apply Bowman and Molloy, in effectively the same manner,
“[a]lbeit with a degree of reluctance”.185
Again, the decision in Latimer CA is not mentioned in the judgment.
180. Re Greenpeace HC, supra note 49 at para 1.
181. Ibid at paras 47-57.
182. Ibid at para 59.
183. Bill of Rights, supra note 60.
184. Re Greenpeace HC, supra note 49 at para 59.
185. Ibid.
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F. e Court of Appeal Decision
Greenpeace’s appeal of the High Court decision was heard on 4 September
2012, with the Court of Appeal delivering its decision a few weeks later
on 16 November 2012.
With respect to clause 2.2 of Greenpeace’s purposes, the Court of
Appeal continued the approach of analysing the promotion of peace, and
the promotion of nuclear disarmament and the elimination of weapons
of mass destruction (“ND and EWMD”) as separate purposes, rather
than as part of a wider purpose of protection of the environment.
In setting out the applicable test for whether a purpose is charitable,
the Court of Appeal referred to the Latimer CA decision, and articulated
the test as follows:
e purpose must be for the public benefit and charitable in the sense of
coming within the spirit and intendment of the preamble to the Statute of
Charitable Uses Act 1601 (43 Eliz I c 4) (the preamble). e public benefit
requirement focuses on whether the purpose is beneficial to the community or
a sufficient section of the public. e requirement to be charitable within the
spirit and intendment to the preamble focuses on analogies or the presumption
of charitable status. Even in the absence of an analogy, objects benefit to the
public are prima facie within the spirit and intendment of the preamble and,
in the absence of any ground for holding that they are outside its spirit and
intendment, are therefore charitable in law.186
e writer respectfully submits that this is an accurate statement of the
test for whether a purpose is charitable in New Zealand law.
However, the Court of Appeal found that the words “for example,
advocacy” in subsection 5(3) of the Charities Act had codified a political
purposes exclusion in New Zealand law,187 albeit one that was limited to
“contentious political purposes”.188 e Court of Appeal noted criticism
of such an exclusion, but considered that the rationale for the prohibition
remained. In this context, the Court of Appeal referred to the comments
of the Canadian Federal Court of Appeal in Human Life International189
that a “guarantee of freedom of expression … is not a guarantee of public
186. Re Greenpeace CA, supra note 49 at para 43 [footnotes omitted].
187. Ibid at paras 45, 56, 59-60, 63, 67.
188. Ibid at paras 60, 64.
189. Human Life International, supra note 79.
41
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funding through tax exemptions for the propagation of opinions no
matter how good or how sincerely held” inferring an “underlying concern
that taxation benefits should not be available to a society pursuing one
side of a political debate”.190
e Court of Appeal did not refer to the decision in Latimer CA in
this context.
e writer would respectfully disagree with the Court of Appeal that
a strict political purposes exclusion was “part of the current law of New
Zealand”191 on the basis of Molloy, or that subsection 5(3) operated to
enact one,192 for the reasons discussed above.
G. e Promotion of Peace
With respect to the promotion of peace, the Court of Appeal held that
it was:
uncontroversial and uncontentious today that in itself the promotion of peace
is both for the public benefit and within the spirit of and intendment of the
preamble, either by way of analogy or on the basis of the presumption of
charitable status.193
e Court of Appeal agreed with the decision in Southwood v Attorney-
General,194 that promoting peace through either disarmament, or
maintaining military strength, would not be charitable, on the basis
that promoting peace through these means would be “contentious and
controversial with strong, genuinely held views on both sides of the
debate”.195
However, the Court of Appeal held that the foreshadowed
amendments to clause 2.2 of Greenpeace’s objects would “remove the
element of political contention and controversy inherent in the pursuit
of disarmament generally and instead constitute, in New Zealand today,
190. Re Greenpeace CA, supra note 49 at paras 59, 63, referring to Human Life
International, ibid.
191. Re Greenpeace CA, ibid at para 63.
192. Ibid at para 58.
193. Ibid at para 72.
194. [2000] EWCA Civ 204 [Southwood].
195. Re Greenpeace CA, supra note 49 at paras 73-74.
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an uncontroversial public benefit test”.196 In reaching this view, the Court
of Appeal looked to New Zealand’s status as a signatory to the Treaty
on the Non-Proliferation of Nuclear Weapons,197 the passing of the New
Zealand Nuclear Free Zone Disarmament, and Arms Control Act 1987,198
and “overwhelming public opinion in New Zealand”199 as demonstrating
that the promotion of ND and EWMD was beneficial to the community.
e Court of Appeal also held that the purpose was within the spirit
and intendment of the preamble, both on the basis of analogy with
the promotion of peace, and on the basis that there was no ground for
holding otherwise.
On that basis, the Court of Appeal concluded that the public benefit
of ND and EWMD is now “sufficiently well accepted in New Zealand
society that the promotion of peace through these means should be
recognised in its own right as a charitable purpose under the fourth head
of the definition”.200
It seems difficult to argue with the premises that the promotion of
peace and the promotion of ND and EWMD are inherently beneficial
to the public, and that there is no apparent reason why they should not
be considered within the spirit and intendment of the preamble and
therefore charitable.
However, in reaching this conclusion, the Court of Appeal appeared
to accept the reasoning in Southwood, whereby, in analysing whether a
purpose for the promotion of peace was charitable, the Court found it
necessary to consider the means by which peace would be promoted. If
that premise was accepted,201 it does raise the question of why a similar
purpose for the promotion of ND and EWMD should not also require
196. Ibid at para 76.
197. Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729
UNTS 161 (entered into force 5 March 1970).
198. 1987/86 (NZ).
199. Re Greenpeace CA, supra note 49 at para 79.
200. Ibid at paras 76-82.
201. Ibid at paras 73-74, 100.
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analysis of the means by which that purpose would be promoted.202
e writer would also respectfully differ from the Court of Appeal
in the emphasis placed on controversy. Rather than having such a
determinative effect, the writer respectfully submits that controversy
is simply one factor to be taken into account in assessing whether the
public benefit test is met on the facts of any particular case.
H. Ancillary Purposes
With respect to clause 2.7 of Greenpeace’s purposes, the Court of Appeal
noted that Greenpeace had changed the wording of its constituting
document to require promotion of the adoption of legislation etc to be
ancillary to Greenpeace’s other objects.203 Greenpeace appears to have
made this change on the basis of the findings by the High Court and the
Court of Appeal that there was a strict exclusion against non-ancillary
‘political’ purposes in New Zealand law.
However, if there was no such strict exclusion, such an amendment
was unnecessary. Further, the amendment appears to have caused
confusion with respect to the distinction between purposes and
activities.204 e writer respectfully agrees with the subsequent finding of
the Supreme Court that, even if a strict political purposes exclusion was
to be recognised, if it was correct to find that the promotion of peace,
ND, and EWMD was charitable, it would not have been necessary to
find advocacy activity properly connected with those purposes to be
proscribed unless shown to be ancillary only;205 among other things, the
ancillary rule applies to purposes, not activities, as subsection 5(3) of the
Charities Act makes clear. In addition, as a matter of law, Greenpeace
should have been able to engage in unlimited non-partisan advocacy
activities in furtherance of its stated charitable purposes, as discussed
above. Arguably, those stated charitable purposes were the protection of
202. Re Greenpeace SC, supra note 1 at paras 87, 98, 100; cf. Re Greenpeace CA,
ibid at para 81.
203. Re Greenpeace CA, ibid at paras 83-92.
204. Ibid at paras 91-92.
205. Re Greenpeace SC, supra note 1 at paras 74, 85.
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the environment, as noted by the High Court;206 however, even if it had
been correct to analyse clause 2.2 in separate components, the Court of
Appeal had now found all of Greenpeace’s purposes to be charitable.
However, the difficulty was that the amended wording of Greenpeace’s
object now did require Greenpeace’s advocacy to be ‘ancillary’, even if
such a requirement did not make sense as a matter of common law. As the
Court of Appeal noted, organisations have a legal requirement to comply
with the terms of their constituting document.207 Failure to do so raises
issues of breach of duty and ultra vires. Having made the amendment,
Greenpeace now had a legal obligation to ensure that its advocacy work
was ‘ancillary’.
Nevertheless, in perhaps another demonstration of the difficulties
caused by the absence of a trier of fact, the Court of Appeal considered
that the issue of compliance with clause 2.7 in its amended form was
a matter of evidence that needed to be addressed by Charities Services
at first instance, and not by the Court on a second appeal. e Court
of Appeal referred the matter back for reconsideration in light of its
judgment.208
Greenpeace appealed to the Supreme Court.
I. e Supreme Cour t Decision
e writer respectfully agrees with the findings of the Supreme Court
that there is no political purposes exclusion in New Zealand law, and
that subsection 5(3) did not operate to enact one.209 A blanket exclusion
is neither necessary nor beneficial, risks rigidity in an area of law which
should be responsive to the way society works, and distracts from the
underlying inquiry whether a purpose is of public benefit.210 Instead, the
question of whether a purpose is ‘political’ is simply one facet of the
206. Re Greenpeace HC, supra note 49 at para 1.
207. Re Greenpeace CA, supra note 49 at paras 87-88.
208. Ibid at para 92.
209. Re Greenpeace SC, supra note 1 at paras 56-58, 86, 115.
210. Ibid at paras 3, 59, 69, 70, 114.
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public benefit test,211 as is the issue of controversy.212
In this respect, the writer respectfully submits that the Supreme
Court confirmed the pre-Charities Act position.
In two respects, however, the Supreme Court disagreed with the
approach taken by the Court of Appeal to assessing whether a purpose
to promote ND and EWMD was charitable: (1) the application of the
presumption of charitability; and (2) whether it was necessary to consider
the manner of promotion of ND and EWMD.213
Importantly, however, the Supreme Court did not appear to question
the two-step test. In fact, despite at times using a short-hand expression
that might appear to conflate the two limbs of the test,214 the Supreme
Court appears to have been at pains to emphasise that both limbs of the
test must be satisfied.215
J. e Presumption of Charitability
With respect to the presumption of charitability, the Supreme Court
disagreed with the Court of Appeal’s approach to the second limb of
the two-step test, appearing to hold that this limb could be satisfied by
analogy only.216
However, the writer respectfully submits that the Supreme Court
appears to have misdirected itself as to the nature of the presumption.
e Supreme Court appears to have mistakenly equated the presumption
of charitability with the “single test of public benefit”217 suggested by
counsel for the appellant in Vancouver Society.218 In the Vancouver Society
case, counsel urged the Supreme Court of Canada to consider adopting
211. Ibid at paras 72-74.
212. Ibid at paras 75, 99.
213. Ibid at paras 3, 31, 87-100.
214. Ibid at paras 3, 18, 73, 103, 114.
215. Ibid at paras 27, 29, 30, 32, 113. See also Re Family HC, supra note 49 at
para 8.
216. Re Greenpeace SC, ibid at paras 29-31.
217. Ibid at paras 29, 113.
218. Vancouver Society, supra note 14; Re Greenpeace SC, supra note 1 at paras
24-25, 27, 29-30, 113.
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an “entirely new approach”219 to the definition of charitable purpose, in
response to the “unduly restrictive”220 interpretation of the definition that
prevailed in Canadian jurisprudence at that time.221
Adoption of such a test would clearly have been a radical change for
Canada.222 However, with respect, the presumption of charitability does
not correspond with the “single test of public benefit”223 put forward in
that case. In addition, the presumption does not “lose the concept of
charity”224 but seeks to find it, in way that has been recognised by the
High Court as being in the public interest, “more intellectually honest”225
and based on sound policy.226 Recognition of the presumption would
also not have constituted a “radical change”227 in New Zealand as, in
contrast to Canada, the presumption was firmly part of New Zealand
law, as discussed above.228
A further difficulty is that the Supreme Court appears to hold that
the presumption of charitability can only be rebutted if shown to be
contrary to analogous cases,229 citing the comments of Lord Justice
Russell in Incorporated Council of Law Reporting for England and Wales v
219. Vancouver Society, ibid at para 196.
220. Ibid at para 168.
221. Ibid at paras 196-198, 200.
222. Re Greenpeace SC, supra note 1 at para 29.
223. Ibid at paras 29, 113.
224. Ibid.
225. Re Collier, supra note 16 at 95.
226. Ibid.
227. Vancouver Society, supra note 14 at para 200.
228. e comments of the Court in Vancouver Society, ibid, referred to in Re
Greenpeace SC, supra note 1 at para 29, were referring to the single test of
public benefit, not the presumption of charitability. e presumption of
charitability in New Zealand in fact bears more, although not complete,
resemblance to the approach put forward by the intervener in Vancouver
Society, ibid at paras 201-02. is too would have been a change in
Canada, which as noted above interpreted the definition of charitable
purpose much more restrictively than in New Zealand.
229. Re Greenpeace SC, supra note 1 at paras 25-26.
47
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Attorney-General.230 With respect, the reference to analogous cases in this
context appears misplaced. As discussed above, Russell LJ’s comments,
which have been cited with approval in many New Zealand cases,231 hold
that a purpose for the public benefit is presumed to be charitable in the
absence of any ground for holding otherwise. ere is no apparent reason
why such grounds should be limited to contrariety to analogous cases;
indeed, such a limitation would appear to equate the presumption with
the analogy test to which it was specifically providing an alternative.
Even so, given four centuries of case law, there are now so many
analogies available that, as the Supreme Court notes, whether the
second limb of the test is assessed by means of analogy, or by means of a
presumption, may make “little difference in result”.232
K. Manner of Promotion
In terms of the second respect in which the Supreme Court disagreed
with the approach taken by the Court of Appeal, the writer respectfully
submits that some conflation of the distinction between purposes and
activities appears to have occurred.233 For example, the Supreme Court
appears to consider that subsection 18(3) had changed the law to
enable the purposes of an entity to be “inferred from the activities it
undertakes”,234 apparently without reference to an entity’s constituting
document.235
With respect to this specific point, the High Court has subsequently
clarified in Re e Foundation for Anti-Aging Research that subsection
18(3) was not intended to “wreak some fundamental change in approach
or a move away from the fundamental ‘purposes’ focus of the charities
230. [1972] Ch 73 (CA (Eng)).
231. See e.g. Morgan v Wellington City Corporation, [1975] 1 NZLR 416 (CA)
at 419-20; Medical Council, supra note 26 at 310; Auckland Medical Aid,
supra note 75 at 388; and Latimer HC, supra note 5 at paras 106, 131. See
also Re Greenpeace CA, supra note 49 at para 43.
232. Re Greenpeace SC, supra note 1 at paras 27, 31.
233. See e.g. ibid at paras 32, 47, 55, 65, 71, 73-74, 102, 104.
234. Ibid at para 14.
235. Ibid.
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inquiry”.236 In other words, subsection 18(3) did not change the pre-
Charities Act approach to ascertaining a charity’s purposes, and the limited
role of activities in that regard. e Court’s role remains interpretation of
the constituting document, not creation, as discussed above.
e fact that it would be very rare for advocacy activity to constitute
a purpose in its own right is also significant in this context. e writer
submits that this factor explains the following statements of the Supreme
Court: that “advancement of causes will often, perhaps most often,
be non-charitable”,237 on the basis of difficulty of establishing public
benefit;238 that “the promotion itself, if a standalone object not merely
ancillary, must itself be … a charitable purpose”239; and that it may be
“difficult” or “unusual” to show that “the promotion of an idea is itself
charitable”.240 e writer submits that, in these statements, the Supreme
Court is simply referring to the rare situation where an advocacy activity
may have become a purpose in itself, and is holding that, even in such
a case, there is no reason in principle why such a purpose could not
be charitable if the two-step test is satisfied. In so doing, the writer
respectfully submits that the Supreme Court affirms the pre-Charities Act
position, and does not disturb the principle that charities may engage in
unlimited non-partisan advocacy activity in furtherance of their stated
charitable purposes.
Such statements might otherwise be highly problematic as,
conceptually, every charitable purpose is a ‘cause’ and charities must
by law act in furtherance of, and therefore ‘advance’, their charitable
purposes. If, by the above statements, the Supreme Court was intending
236. Re e Foundation for Anti-Aging Research, supra note 18 at paras 82-87,
Ellis J. e High Court decision was recently cited with approval in
Graham Hipkiss v e Charity Commission for England and Wales (2018)
First-Tier Tribunal (Charity) CA/2017/0014, online (pdf):
decisions.tribunals.gov.uk/documents/decisions/Decision%20(23%20
August%202018).pdf>.
237. Re Greenpeace SC, supra note 1 at para 73.
238. See also the comment in Re Greenpeace SC, ibid at para 74 that such a
finding “will not be common”.
239. Ibid at paras 103, 102; see also para 73.
240. Ibid at paras 114-15.
49
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to import an entirely new approach that would see essentially every
purpose having difficulty establishing public benefit, and therefore being
charitable, the Supreme Court would surely have signalled this clearly,
particularly given the extent to which Supreme Court appeared to be
eschewing any “radical change”.241 e writer respectfully submits that
the former interpretation seems more likely and is to be preferred.
Another issue relates to the comments of the Supreme Court that
assessment of whether “advocacy or promotion of a cause or law reform
is a charitable purpose depends on consideration of the end that is
advocated, the means promoted to achieve that end and the manner in
which the cause is promoted”.242 Similarly, the Supreme Court states
that: “[e]ven if an end in itself may be seen as of general public benefit
(such as the promotion of peace) the means of promotion may entail a
particular point of view which cannot be said to be of public benefit”.243
e Supreme Court does not analyse how these statements relate
to the comments of the Privy Council that the relevant distinction is
between “ends, means and consequences”,244 and that it is ends, not
means, that must be exclusively charitable.245 Again, such statements
might on their face appear highly problematic given that, broadly, every
charitable purpose can be conceptualised as “promotion of a cause”.246
However, again, it seems unlikely that the Supreme Court would have
meant these statements to usher in a fundamental overhaul of the test for
whether a purpose is charitable, particularly given the extent to which the
Supreme Court seemed at pains to maintain the traditional two-step test
for whether any purpose was charitable.247
In principle, there seems no practical distinction between ‘means’
and ‘manner’, except in the context of the unique, three-layered abstract
241. Ibid at para 29.
242. Ibid at para 76.
243. Ibid at para 116.
244. Latimer PC, supra note 16 at para 36.
245. Ibid.
246. Re Greenpeace SC, supra note 1 at paras 76, 116.
247. Ibid at paras 29-30.
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purpose that was at issue before the Court. In other words, the better
interpretation appears to be that the promotion of peace through the
promotion of ND and EWMD is one of the exceptions where it may
be necessary to look to activities to ascertain the true purpose of an
organisation. In other words, the purpose of referring to ‘means’ and
‘manner’ was to require a consideration of the means of promoting the
means of promoting peace, to ascertain the true nature of the specific
purpose before the Court. e specific reference to the promotion of
peace provides support for this interpretation.248
e writer respectfully submits that the purpose of referring to
means and manner was not to ascertain whether ‘means’ and ‘manner’
are charitable, or to require a charity to show public benefit in all of its
activities. As the High Court has noted in Re e Foundation for Anti-
Aging Research, it seems unlikely that the Supreme Court was intending
to “wreak some fundamental change in approach or a move away from
the fundamental ‘purposes’ focus of the charities inquiry”.249
L. Assessing Public Benefit
In disagreeing with the approach taken by the Court of Appeal to assessing
whether a purpose to promote ND and EWMD was charitable, the
Supreme Court stated that it is “no answer” to point to the international
and domestic framework for nuclear disarmament.250
However, the writer respectfully submits that these statements do
not displace the approach to assessing public benefit that was set out by
the High Court in Latimer HC.251 To the contrary, while Parliament’s
involvement may, in the Supreme Court’s view, not have resolved the
question of public benefit on the facts of the Re Greenpeace SC case,252
that does not translate into a ‘hard and fast rule’ that Parliament’s
involvement can never provide a guide as to public benefit. e issue
comes down to the facts of each specific case.
248. Ibid at para 116.
249. Re e Foundation for Anti-Aging Research, supra note 18 at para 86.
250. Re Greenpeace SC, supra note 1 at para 101 [emphasis added].
251. Latimer HC, supra note 5; ibid at para 83.
252. Re Greenpeace SC, supra note 1 at para 101.
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As perhaps another indication of the disadvantage experienced by
charities through their inability to access a trier of fact, the Supreme
Court considered that it did not have the evidence necessary to determine
whether a purpose to promote peace through ND and EWMD was
charitable, and referred the matter back to Charities Services for
reconsideration in light of its judgment.253
VI. W hat is the Question Following the Supreme
Court Decision?
To summarise, in the writer’s respectful submission, the Supreme Court
decision did not change the law, but restored it to its pre-Charities Act
position. e test for whether a purpose is charitable remains the two-
step test set out by the Court of Appeal in Latimer CA, with a question
mark over whether the second limb of the test can in fact be met by
the presumption of charitability. ere is no political purposes exclusion
in New Zealand law. Whether a purpose is ‘political’, ‘controversial’, or
both, are simply facets of the public benefit test. Charities remain lawfully
permitted to undertake unlimited non-partisan advocacy in furtherance
of their stated charitable purposes, as was the case before the Charities
Act. In the rare case where advocacy activity may have become a purpose
in itself, such a purpose may still be charitable if it can meet both limbs
of the two-step test.
A. e Board’s Second Decision
However, Charities Services clearly interpret the Supreme Court decision
differently.
On 21 March 2018, almost four years after the Supreme Court
had delivered its decision, and almost a decade after Greenpeace had
first applied for registration, the Board completed its reconsideration
in light of the Supreme Court decision. It again declined Greenpeace’s
253. Ibid at paras 104, 117.
52
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application.254
With respect, although the High Court in Re e Foundation for
Anti-Aging Research had confirmed the distinction between purposes
and activities, the Board appears to recast the test set down by the High
Court to fit within a paradigm that conflates purposes and activities.255
e Board now appears to require public benefit to be found in all of a
charity’s activities.256 As discussed above, this results in a complex and
highly subjective approach under which a charity cannot have certainty
as to whether its purposes are charitable unless Charities Services says
that it is. is results in a ‘deeming’ approach similar to the one suggested
by IRD in 2001 but was rejected by the Select Committee in 2004.
With respect, the approach seems arbitrary. Is there really a principled
basis on which Save Animals from Exploitation qualifies for registration257
but Greenpeace does not? Or on which Restore Christchurch Cathedral
qualifies258 but the Society for the Protection of Auckland Harbours does
not?259 Greenpeace’s purposes for the protection of the environment and
the advancement of education, are now no longer found to be charitable,
254. Application of Greenpeace of New Zealand Incorporated, (2018) Charities
Registration Board 1 (NZ), online (pdf):
Uploads/Greenpeace-of-New-Zealand-Incorporated-Decision.pdf>
[Greenpeace of New Zealand Incorporated].
255. Ibid at para 10.
256. Ibid at para 28.
257. Application of Save Animals From Exploitation, (2018) Charities
Registration Board 1 (NZ), online:
zealand/legal-decisions/view-the-decisions/view/save-animals-from-
exploitation>.
258. Application of Restore Christchurch Cathedral Group Incorporated, (2015)
Charities Registration Board 1 NZ) online (pdf):
Uploads/Restore-Christchurch-Cathedral-Group-Incorporated-decision.
pdf>.
259. Application of Society for the Protection of Auckland Harbour, (2016)
Charities Registration Board 1 (NZ) online (pdf):
assets/Uploads/Society-for-the-Protection-of-Auckland-Harbours-
decision.pdf.pdf>.
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despite having been found to be charitable throughout the litigation.260
Charities advocating against government policy now appear to be
particularly vulnerable to non-registration,261 raising the spectre of
original concerns that the Charities Act regime would be used as a means
for government to exercise political control of the charitable sector.
e writer respectfully submits that the new approach of Charities
Services and the Board does not make sense in charities law terms,
is unworkable in practice, and puts New Zealand out of step with
comparable countries such as Canada and Australia. Greenpeace has
appealed again, and also sought judicial review.262 At the time of writing,
Greenpeace’s consolidated appeal is awaiting hearing. Other appeals are
also in progress,263 highlighting that the position in New Zealand is not
settled.
e topic of advocacy by charities is specifically included within the
terms of reference for the current review of the Charities Act (despite the
definition of charitable purpose itself being outside the scope).264 e
issue of advocacy has been a key issue raised in consultation meetings
and submissions to date.265 It is the policy of both Labour and the Green
Party (two of the three political parties that currently form the coalition
government of New Zealand) to support the independence of community
260. Greenpeace of New Zealand Incorporated, supra note 254 at paras 35, 50,
76.
261. Examples include Greenpeace, Kiwis Against Seabed Mining
Incorporated, Family First New Zealand.
262. Greenpeace of New Zealand Incorporated v Charities Registration Board,
263. Family First New Zealand has appealed the decision of the High Court in
Re Family HC, supra note 49 with a hearing expected in October 2019.
e Better Public Media Trust has appealed the decision of the Board to
decline its application for registration Application of Better Public Media
Trust, (2019) Charities Registration Board 1 (NZ), online (pdf):
charities.govt.nz/assets/Uploads/Better-Public-Media-Trust4.pdf>.
264. e terms of reference can be found here: “Modernising the Charities Act
2005” (2019), online: Department of Internal Affairs
charitiesact>.
265. e writer is a member of the Core Reference Group for the review of the
Charities Act, supra note 4.
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sector advocacy, and ensure that charities can engage in advocacy without
fear of losing their charitable status.266 Despite this, early indications
are that officials may seek to devolve law-making to Charities Services
providing guidance on their controversial interpretation, on the basis of
promoting ‘clarity’.
B. Freedom of Expression
Although freedom of expression is one of the most essential elements of a
democratic society,267 the right to freedom of expression under section 14
of the Bill of Rights268 has not been meaningfully considered in decisions
regarding the advocacy functions of charities to date.269
e rights and freedoms contained in the Bill of Rights may be subject
only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.270 Restrictions on the right
to freedom of expression must conform to strict tests of necessity and
proportionality,271 and, wherever an enactment can be given a meaning
that is consistent with the rights and freedoms contained in the Bill of
Rights, that meaning is to be preferred to any other meaning.272
e burden of justifying a limitation upon a guaranteed right, and
of demonstrating that the limitation does not impair the democratic
266. See New Zealand Labour Party, “Community and Voluntary Sector”
(2017), online (pdf): New Zealand Labour Party
cloudfront.net/nzlabour/pages/8546/attachments/original/1504489890/
Community___Voluntary_Sector_Manifesto.pdf>; and Green Party of
Aotearoa New Zealand, “Community and Voluntary Sector” (2011),
online (pdf): Green Party of Aotearoa New Zealand
sites/default/files/community_and_voluntary_sector_2011_0.pdf>.
267. Wall v Fairfax New Zealand Ltd, [2018] 2 NZLR 471 (HC) at para 26
[Wall].
268. Bill of Rights, supra note 60.
269. John Hancock, “Advocacy – Are Charities able to Advocate Against
Government Policy?” (Presentation delivered at the 2019 New Zealand
CLAANZ Conference, New Zealand, 11 April 2019) online:
charitylawassociation.org.au/events-nzconf2019>.
270. Bill of Rights, supra note 60, s 5.
271. Wall, supra note 267 at para 26.
272. Bill of Rights, supra note 60, s 6.
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functioning of society, lies with the state.273 e onus is therefore on
Charities Services to demonstrate how the limitations it seeks to impose
on charities’ right to freedom of expression can be justified.274
e recent decision of the Ontario Superior Court of Justice in
Canada Without Poverty v Attorney-General of Canada275 lends support
to the proposition that the Human Life International approach, discussed
above, should not be followed.276 A government agency denying charitable
registration to a charity on the basis of its work advocating for its stated
charitable purposes is a limitation on that charity’s freedom of expression
that needs to be, but has not yet been, demonstrably justified in a free
and democratic society.277
It is no answer to say that some may disagree with particular positions
advocated for by particular charities. ere is no requirement, or even
realistic possibility, for all to agree with every position taken by every
charity. Rather than analysing the tax privileges available to charities in
terms of the positions taken by particular individual charities, those tax
privileges should be seen in the wider context of generating public debate
in a marketplace of ideas in a participatory democracy. It is a case of, ‘I
may not agree with what you say, but I will defend to the death your right
to say it’. As the High Court of Australia has noted, the generation by
lawful means of public debate is itself in the public interest.
It is also axiomatic that all advocacy undertaken by a charity must be
undertaken in furtherance of that charity’s stated charitable purposes. If
barriers are placed in the way of charities’ ability to advocate, the risk is
that the debate will be skewed in favour of vested, monied interests, who
273. Siracusa principles on the limitation and derogation provisions in the
International Covenant on Civil and Political Rights, supra note 64 at paras
12, 20. See also UN Human Rights Committee General Comment 34 on
the right to freedom of opinion and expression under Article 19 at para
27.
274. Bill of Rights, supra note 60, ss 3, 29.
275. 2018 ONSC 4147.
276. Noting that the Court of Appeal’s approval of the statements in Human
Life International, supra note 79, were contained within the paragraphs
that were overturned by the Supreme Court on appeal.
277. Bill of Rights, supra note 60, s 5.
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may have the resources to dominate the narrative without the discipline of
charitable purposes or the transparency and accountability requirements
that registered charitable status entails.
As with childhood diseases, we can better resist those germs to which
we have been exposed.278 Rather than silencing charities for their speech,
what is really needed in New Zealand is a mature debate as a society
about what freedom of speech really means, and why it is important to
our democracy.
VII. Conclusion
When it comes to the issue of advocacy by charities, the writer
respectfully submits that Charities Services is not asking itself the right
question. e question is not whether there is public benefit in any
particular point of view. e question, with respect to any advocacy, is
whether it is undertaken in furtherance of the charity’s stated charitable
purposes. If so, and provided the advocacy is not partisan, and complies
with other restrictions on speech, such as the requirements of electoral
law, defamation law and proscriptions on hate speech, and is otherwise
in accordance with the charity’s constituting document, there should
be no difficulty. Within those parameters, charities should be free to
exercise their right to freedom of expression as they see fit without undue
government interference.
As Hammond J has observed,279 the Court does not have to enter
into the debate at all; hence the inability of the Court to resolve the
merits is irrelevant. e function of the Court ought to be to sieve out
debates which are for improper purposes; and to then leave the public
debate to lie where it falls, in the public arena.
It is hoped that, in addressing the issue of advocacy by charities, the
review of the New Zealand Charities Act will be guided by principles,
such as: (1) purposes are not to be conflated with activities; (2) charities’
278. Submission by Rowan Atkinson to the English Parliament in 2012
seeking reform to section 5 of the Public Order Act 1986 (UK) (which
made it a public order offence to use “insulting” words).
279. Re Collier, supra note 16 at 90.
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rights to freedom of expression must be respected; (3) there is no political
purposes exclusion in New Zealand law; and (4) charities are able to
engage in unlimited non-partisan advocacy in furtherance of their stated
charitable purposes. In the writer’s respectful submission, these principles
reflect the pre-existing position and have not been substantively changed
by either the passing of the Charities Act or the Supreme Court decision.
It is to be hoped that the review of the New Zealand Charities Act will
follow Canada’s lead on this issue and make these principles clear.
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