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Cases, Charitable Trusts, trust

If at first you don’t succeed

This blog, which might just as easily be entitled “Flat earth Society members need not apply”, considers the charitable status of cryogenics research.

“[1] The possibility of life after death is, perhaps, one of humanity’s oldest preoccupations. Resurrection is at the heart of Christian ideology. And from Mary Shelley’s Frankenstein, HG Welles’ When the Sleeper Wakes, Oscar Wilde’s Picture of Dorian Gray, Bram Stoker’s Dracula to B grade zombie movies, the idea that death might somehow be defeated, has long since fascinated creative minds.

[2] The notion that such fiction might, in the future, become a reality is somewhat more recent. Cryonics first began to be thought about seriously in the 1960s. And while there are still many sceptics and detractors, the idea also undoubtedly has serious proponents. For example, in 2004 and 2005 some 62 scientists and academics from across the world put their names to an open letter which stated:

Cryonics is a legitimate science-based endeavour that seeks to preserve human beings, especially the human brain, by the best technology available. Future technologies for resuscitation can be envisioned that involve molecular repair by nanomedicine, highly advanced computation, detailed control of cell growth, and tissue regeneration.

With a view towards these developments, there is a credible possibility that cryonics performed under the best conditions achievable today can preserve sufficient neurological information to permit eventual restoration of a person to full health.

[3] That letter formed part of the material that was put before the New Zealand Charities Registration Board (the Board) when the Foundation for Anti-Aging Research (FAAR) and the Foundation for Reversal of Solid State Hypothermia (FRSSH) (collectively, the Foundations) both sought charitable status under the Charities Act 2005 (the Act). Similar organisations have been granted charitable status overseas.

FAAR and FRSSH are to be commended on their dogged determination to obtain charitable status.   Initially denied registration as a charity (see Death and taxes) on the basis that cryopreservation and reanimation of people did not fall under any of the accepted heads of charity FAAR and FRSSH  (together the Foundations) sought judicial review of the Board’s processes.

The Foundations were critical of the Board’s reliance on material sourced from the internet being of the view that it is not the role of the Board to determine the ultimate feasibility of novel scientific research; and that any genuine research that is publicly disseminated should meet the criteria [32].  This position was shared by the Court [68] to [75].

By way of background decision of the Board can be appealed to the High Court (s 59 of the Charities Act 2005).

Procedure

Some consideration is given here to the procedure as it is important for any charity where registration has been denied, to appreciate the process that must be adopted.

  • the impugned decision-maker is not to be named as a respondent to an appeal [r 20.9(2) of the High Court Rules]
  • such a decision-maker is entitled to be represented and heard at the hearing of an appeal on all matters arising in it. So although the Board has a right to be heard in an appeal, it is not a party and (it follows) it would not itself be entitled to appeal the High Court’s decision. It cannot be liable for costs. [r 20.17]
  • to the extent that the Board does choose to exercise its r 20.17 right, the authorities are clear that counsel should adopt a position of assisting the Court rather than taking a proactive role [37]
  • It may be appropriate for the Attorney General to be served and appear – for example where there are matters of wider public importance [41], [42] and [46]

The case in hand

The starting point for consideration was around the matter of “usefulness”.  The Court was satisfied that the Board had accepted that the Foundations carried out research, which is the advance of equation (which is a head of charity) – the question then became as to whether or not this research was “useful”.   As noted by the Court at [58] to [62]:

“… all the authorities make clear is that “usefulness” as that term is applied in the cases constitutes a minimal standard (as Hammond J said), designed only to exclude the “nonsensical” – areas of research and study that are demonstrably devoid of merit. While the concept of merit may raise more difficult, subjective, issues of “taste” where (for example) literature or art is the focus of an educational advancement analysis, I would think such difficulties are much less likely to arise in matters of science. There may be some areas of research whose objects are so at odds with provable reality that purported scientific pursuit of them can be dismissed as nonsensical or’ an exercise in certain futility. Attempting to prove that the earth is flat might be one such endeavour. But absence of merit of that sort will be easy to establish (or refute) by reference to objective evidence.

[59] But as the oft-cited decision in Hopkins makes clear, research into matters that might be regarded by “mainstream” academics as being on the fringe are not excluded. The existence of scientific or academic controversy in a particular area is far from determinative. Nor is an acknowledgement that the goals of the research might only be achieved in the relatively distant future. By way of example only, the Mars Society New Zealand Charitable Trust, whose purposes are to encourage and inspire space science and research leading to New Zealand’s participation in the exploration and settlement of Mars, was registered as a charity on 3 July 2013. The pursuit of such long term goals is likely to yield much useful knowledge along the way, regardless of whether the endpoint is ever achieved. And if the research that will be undertaken in order to work towards such a goal is likely to advance the sum of human knowledge then the “usefulness” threshold will be met.

[60] It seems to me that that is very much the case here. The evidence is that the proposed research is likely to lead to advances in areas such as organ transplant medicine, in vitro fertilisation, stem cell research, treatment of a range of diseases and disorders and enabling biodiversity.

[61] When usefulness is understood in that way it becomes readily apparent that the four indicators relied on by the Board are largely irrelevant. In the absence of clear evidence that cryonics research is “nonsense” and will not advance human knowledge, it matters not whether such research is presently “accepted academic discipline” or “current science” (whatever those terms may actually mean). And as far as being “an area which education may cover” in New Zealand I have no doubt that, as in any new or developing area of scientific endeavour, whatever knowledge the research yields will be taught as the research progresses. It is for that reason that future dissemination is regarded as implicit in the concept of research.

[62] In my view the Board erred in its interpretation and application of the “usefulness” test.

Public Benefit

It is also necessary to satisfy the public benefit requirement.  The position of the Board was that while public benefit is assumed for educational purposes, an objective consideration is still required as to whether there is a public benefit.

The Board was not satisfied that the Foundations’ cryonics research provided sufficient public benefit. The Court disagreed noting at [66]:

(a)there is no authority that research must be uncontroversial before it can be considered charitable. Stem cell research has, for example, been accepted as such

(b) even in advocacy cases (such as Molloy v Commissioner of Inland Revenue) where the Courts in the past have said that they are ill placed to judge whether public benefit will result if the subject of the advocacy is controversial (in Molloy, a change to the abortion laws) the Supreme Court in Re Greenpeace has now made it clear that the presence or absence of controversy cannot be determinative;

(c) the Board has conflated cryonics research, which does not raise any particular moral and ethical issues, with the distant goal of actual cryonics, which (it is acknowledged) does raise ethical questions;

(d) the Canadian case [Amateur Youth Soccer Association v Canada (Revenue Agency)] that is authority for the proposition that the Courts are very sceptical about the “appropriateness of defining the purpose of a trust by reference to alleged downstream benefits” is not an advancement of education case. It seems to me that research is an iterative process and its public benefit will often not just lie in its end result;

(e) the potential cost of actually delivering cryogenic services to users in the distant future can neither be relevant nor known. The Foundations’ purposes do not, in any event, include the provision of cryogenic services. The proper focus is on the research and the public benefit that research presumptively yields.

The presumed public benefit involved in the proposed research was not rebutted and the Court was satisfied that the Foundations’ purposes were clearly charitable under the advancement of education head.

References:

Discussion

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