When political is not permissible

The law of what is and, what is not, charitable can be a complex matter where the devil is very much in the detail.  It can be important to be able to evidence that the charity says what it does and does what it says.

When considering applications for registration as a charity the Charities Board is increasingly inclined to look not just at the paper application, but what the charity’s website says about itself and its actions.  This was evidenced in the Greeenpeace decisions (citations below)  where the result of the failed registration application was determined in part by items on the Greenpeace website appearing to endorse members’ illegal activities.

The reports of tresspass and related matters was not the only problem Greenpeace had.  While modern technology made it a simple matter to confirm what it was saying about its activities the real stumbling block to its registration as a charity was centuries’ old law that  has determined that political purposes cannot be charitable (the reasoning being that a Court cannot judge whether any political purpose is of public benefit – and it is a fundamental requirement that any charity must be for public benefit).

And why do charities care?  If a charity, whether a charitable trust, or a charitable society is to obtain the tax advantages available to a charity (for example tax-free income) then the charity must be a registered charity.

Registration is not available to a charity with exclusively political purposes.  However, if the political purposes are minor (ancillary) registration may be possible.  Another relevant consideration is the moving feast of waht is and what is not political.  The recent  Greenpeace decisions have drawn attention to the fact that the law of charities is not static.  However,  changes in one jurisdiction cannot automatically be assumed to apply in another (at present time Australia has moved ahead of us, arguably accepting a more extensive range of political purposes: see for example the Aid/Watch decision cited below).

What the Greenpeace decision also highlights is the need for charities to roll with the punches – while its registration has not been confirmed yet, Greenpeace is now on track for its registration application to be reconsidered due to its proposal to the court that it amend its rules so that its object of disarmament is replaced with “nuclear disarmament and the elimination of all weapons of mass destruction”.  The Court of Appeal being satisfied that such amendments would remove the element of political contention and controversy that made such a purpose contrary to the public benefit purpose.

This is a significant step in the development of charitable jurisprudence and the recognition that the promotion of nuclear disarmament can be for the public benefit, whereas general disarment is not. Greenpeace is not there yet and if any illegal activities are able to be attributed to  Greenpeace, charitable registration may still be out of its grasp.

Post script

Note that the Supreme Court has granted Greenpeace leave to appeal the aspects of this decision relating to the scope of charitable purposes in New Zealand and whether the pursuit of illegal or unlawful purposes will always disentitle the applicant to registration as a charity.  See http://www.nbr.co.nz/article/political-greenpeace-unhappy-charity-win-wants-more-bc-137076

References:

• Re Greenpeace of New Zealand Inc [2011] NZHC 77
• Re Greenpeace of New Zealand Inc [2012] NZCA 533
• Re Greenpeace of New Zealand Inc [2013] NZSC 12
• Aid/Watch Inc v C of T (2010) 241 CLR 538