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Charitable trusts, Charities

Finally …

Greenpeace has been seeking registration as a charity since 24 June 2008. The original application to the (then) Charities Board, now Charities Services, was declined and subsequent appeals ultimately reached the Supreme Court. See Greenpeace appeal result – one all draw for further background and the following paragraphs from the 2020 High Court decision:

“[3] The Charities Commission and the courts at this time were principally focussed on whether one of Greenpeace NZ’s stated objects, that of promoting “peace, disarmament and the elimination of all weapons of mass destruction”, disqualified it from charitable status. This issue arose because, under the prevailing authority in New Zealand at the time, an organisation with a political purpose was not regarded as having a charitable purpose so as to qualify for registration under the Charities Act 2005. Political purpose included seeking to persuade the public to adopt a particular attitude towards some broad social question.

[4] The Supreme Court, in a majority decision, held that it was not correct that a political purpose necessarily disqualified an organisation from charitable status. It held that an entity could be charitable even if its principal purpose was to advocate or promote a cause. It held that the “end that is advocated, the means promoted to achieve that end and the manner in which the cause is promoted” are to be assessed to determine whether an entity’s purpose is of public benefit and charitable in the sense used by the common law.

[5] The Supreme Court remitted Greenpeace NZ’s application back to the Board (as it had then become) for reconsideration in light of the Court’s decision on political purposes. If Greenpeace NZ had an illegal purpose, that would also disqualify it. The Court was uncertain if this was a live issue so far as the Board was concerned but, if it was, it was to be considered too.

[6] Following the Supreme Court’s decision, the Board reconsidered Greenpeace NZ’s application but again declined it. The Board determined that Greenpeace NZ’s purposes included advocating its own views on environmental issues and on peace, nuclear disarmament and the elimination of weapons of mass destruction and it could not be established that these purposes were of public benefit and charitable. It also considered that Greenpeace NZ had an illegal purpose that disqualified it from charitable status.”

Much of the 2020 High Court decision of Mallon J reviews the background of the matter. Helpfully at [46] Mallon J sets out the current law on advocacy for causes as follows:

“(a) To qualify for charitable status, the entity’s purpose must be a “charitable purpose” as determined by analogy with objects already held to be charitable as well as being of public benefit.

(b) This area of the law should be responsive to the way society works and be responsive to changing circumstances. A modern, outsourced and contracting state may throw up new need for philanthropy.

(c) A charitable purpose does not need to involve directly undertaking tangible good works. It can involve campaigning for charitable ends.

(d) Advocacy for such ends as human rights or protection of the environment can be charitable depending on the nature of the advocacy. These ends require broad-based support and effort, including through political and legal processes.

(e) Advocacy for causes will often not be charitable because it is not possible to say that the views being promoted are a public benefit recognised as charitable, either in their achievement or in the promotion itself. They may also have no sound analogy in the common law to be recognised as a charitable purpose.

(f) It is not the case that advocacy on views that are generally accepted are charitable, and those that are highly controversial were not. Advocacy may be required to effect change that is to the public benefit.

(g) Assessment of whether advocacy or promotion of a cause is a charitable purpose depends on the end that is advocated, the means promoted to achieve that end and the manner in which the cause is promoted.

(h) Where the entity promotes an abstraction, such as peace or nuclear disarmament, the focus must be on how the abstraction is furthered. Advocacy promoting nuclear disarmament and the elimination of weapons of mass destruction was not a charitable purpose per se. It depended on the means and manner of this promotion.

(i) If an entity has an illegal purpose, it is not established and maintained exclusively for charitable purposes. Illegal activities may indicate an illegal purpose, but this was a matter of fact and degree.”

As noted at [47] and [51] the difficulty of the earlier decision lies in its application and conceptually the difficulty at times in distinguishing the ends from the means.

The decision is dense and highlights the fact and detail specific nature of such cases. However, the conclusion at [176] succinctly sets out the result and the reasoning for the same:

[176] I consider the Board was in error in declining Greenpeace NZ’s application for charitable status. Greenpeace NZ’s main activity is to advocate for the protection of the environment. It does that mainly by advocating for measures to mitigate climate change, for sustainable fishing for the protection of the ocean environment and for improving the quality of New Zealand’s freshwater. There is a charitable public benefit in that advocacy, as it contributes to the broad-based support and effort necessary for the end goal of protecting the environment. The advocacy takes a variety of forms. Where it involves commissioning independent scientific research that it makes available on its website, it also advances education. Greenpeace NZ’s purpose to promote peace, nuclear disarmament and the elimination of weapons of mass destruction is ancillary and therefore not disqualifying. It does not have an illegal purpose.

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