Attorney-General v Family First New Zealand
[2022] NZSC 80
•28 June 2022
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 79/2020 [2022] NZSC 80 |
| BETWEEN | ATTORNEY-GENERAL |
| AND | FAMILY FIRST NEW ZEALAND |
| Hearing: Further submissions: | 24 and 25 June 2021 |
Court: | Winkelmann CJ, William Young, Glazebrook, O’Regan and Williams JJ |
Counsel: | P J Gunn and A P Lawson for Appellant |
Judgment: | 28 June 2022 |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe declaration made by the Court of Appeal that the respondent qualifies for registration under the Charities Act 2005 is set aside.
CThere is no order as to costs.
____________________________________________________________________
REASONS
| Para No | |
| Winkelmann CJ, William Young, Glazebrook and O’Regan JJ | [1] |
| Williams J | [163] |
WINKELMANN CJ, WILLIAM YOUNG, GLAZEBROOK AND O’REGAN JJ
(Given by O’Regan J)
Table of Contents
| Para No | |
| Introduction | [1] |
| Background | [4] |
| Statutory context | [8] |
| Issues | [15] |
| Considering activities as well as the constitution? | [20] |
| High Court and Court of Appeal | [21] |
| Our assessment | [23] |
| Appellant’s table of Family First’s activities | [32] |
| Second head: Advancement of education | [39] |
| High Court | [41] |
| Court of Appeal | [45] |
| Legal test to be applied | [50] |
| Trust Deed and statement of principles | [69] |
| Research reports | [84] |
| Forum on the Family | [95] |
| Virtual reading room | [96] |
| Participation in public discourse | [100] |
| The appellant’s table | [104] |
| Are Family First’s non‑charitable purposes ancillary to its charitable purposes? | [105] |
| Comparing this case to Greenpeace 2020 | [106] |
| Conclusion | [107] |
| Fourth head: Beneficial to the community | [109] |
| High Court judgment | [110] |
| Court of Appeal | [113] |
| Self-evident benefit? | [120] |
| Legal test to be applied: Greenpeace (SC) | [125] |
| Application to Family First | [131] |
| High Court and Court of Appeal | [132] |
| Appellant’s submission | [133] |
| Family First’s submission | [134] |
| Our assessment | [135] |
| Conclusion | [149] |
| Rule 20A notice: Molloy | [150] |
| Fiscal considerations | [154] |
| Section 14 of the Bill of Rights | [156] |
| Result | [161] |
| Costs | [162] |
Introduction
The Attorney-General, in his capacity as Protector of Charities, appeals against a judgment of the Court of Appeal in which it allowed an appeal to that Court by Family First New Zealand (Family First) and made a declaration that Family First qualifies for registration under the Charities Act 2005.[1] The Court of Appeal also set aside the decision of the Charities Registration Board | Te Rātā Atawhai (Charities Registration Board) to remove Family First from the Charities Register.
[1]Family First New Zealand v Attorney-General [2020] NZCA 366, (2020) 5 NZTR ¶30-013 (Clifford, Gilbert and Stevens JJ) [CA judgment]. This Court granted leave to appeal, the approved question being whether the Court of Appeal was correct to allow the appeal to that Court from the High Court: Attorney-General v Family First New Zealand [2020] NZSC 151, (2020) 29 NZTC ¶24-087.
Family First gave notice under r 20A of the Supreme Court Rules 2004 of its intention to support the judgment of the Court of Appeal on grounds not relied on by that Court.[2]
[2]See below at [18](a) and [150]–[153].
The Charity Law Association of Australia and New Zealand (CLAANZ) was given leave to intervene and its counsel made both written and oral submissions.
Background
Family First was established by a trust deed entered into on 26 March 2006. We will call this the Trust Deed.[3] It was incorporated under the Charitable Trusts Act 1957 on 6 April 2006. It was originally known as “Family First Lobby”, but changed its name to Family First New Zealand later in 2006. It applied for registration under the Charities Act in February 2007 and was registered on the Charities Register with effect from 21 March 2007. The Trust Deed provides that the trustees govern Family First, but there is also a Board of Reference, which is not referred to in the Trust Deed.[4] One of the founding trustees, Mr McCoskrie, is the National Director of Family First.
[3]The Trust Deed has been amended at various times, but not in a manner that is material to the issues in the appeal.
[4]The evidence does not disclose what role the Board of Reference has, nor how its role relates to that of the trustees.
On 15 April 2013, the Charities Registration Board resolved to de-register Family First as a charity under s 32(1)(a) of the Charities Act.[5] From the perspective of the Board, Family First no longer qualified for registration as a charitable entity for three reasons. First, its main purpose was political and thus non-charitable — it sought to advance points of view about family life which had no self-evident public benefit as a matter of law. Second, its viewpoint expression was not a charitable purpose for the advancement of religion or education. Nor was it generally beneficial. Third, the Board considered Family First had an independent purpose of procuring governmental action consonant with Family First’s own viewpoints.[6]
[5]Family First New Zealand (CC42358) Charities Registration Board Decision 2013-1, 15 April 2013 [First deregistration decision].
[6]At [2].
On 27 May 2013, Family First appealed to the High Court. The hearing of that appeal was deferred until after the delivery of this Court’s decision in Re Greenpeace of New Zealand Inc, which took place on 6 August 2014.[7] After delivery of the Greenpeace (SC) decision, Family First’s appeal was heard by the High Court. The appeal was allowed and the matter was referred back to the Charities Registration Board for reconsideration.[8]
[7]Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169 [Greenpeace (SC)].
[8]Re Family First New Zealand [2015] NZHC 1493, (2015) 27 NZTC ¶22-017. In that decision, Collins J summarised all of the steps taken by the Charities Commission and, later, the Charities Registration Board, prior to the deregistration of Family First: at [5]–[14].
The Charities Registration Board then reconsidered its earlier decision that Family First be de-registered, as directed by the High Court, but concluded again that Family First should be de-registered.[9] Family First appealed against the second deregistration decision to the High Court, but its appeal was dismissed.[10] That High Court judgment was reversed by the Court of Appeal in the decision under challenge in the present appeal.[11]
Statutory context
[9]Family First New Zealand (CC10094) Charities Registration Board Decision 2017-1, 21 August 2017 [Second deregistration decision].
[10]Re Family First New Zealand [2018] NZHC 2273, [2019] 2 NZLR 673 (Simon France J) [HC judgment].
[11]The majority of the Court of Appeal set out a summary of the decisions referred to above in their reasons: CA judgment, above n 1, at [13]–[40]. We do not repeat that here.
As mentioned earlier, Family First was registered under the Charities Act. Section 13(1) sets out the essential requirements for registration which, in the case of a trust, is that it must be “of a kind in relation to which an amount of income is derived by the trustees in trust for charitable purposes”.[12] The term “charitable purpose” is the subject of an inclusive definition in s 5 of the Charities Act, which relevantly provides:
5Meaning of charitable purpose and effect of ancillary non-charitable purpose
(1)In this Act, unless the context otherwise requires, charitable purpose includes every charitable purpose, whether it relates to the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community.
…
(3)To avoid doubt, if the purposes of a trust, society, or an institution include a non-charitable purpose (for example, advocacy) that is merely ancillary to a charitable purpose of the trust, society, or institution, the presence of that non-charitable purpose does not prevent the trustees of the trust, the society, or the institution from qualifying for registration as a charitable entity.
(4)For the purposes of subsection (3), a non-charitable purpose is ancillary to a charitable purpose of the trust, society, or institution if the non‑charitable purpose is—
(a) ancillary, secondary, subordinate, or incidental to a charitable purpose of the trust, society, or institution; and
(b) not an independent purpose of the trust, society, or institution.
[12]Charities Act 2005, s 13(1)(a).
As this Court noted in Greenpeace (SC), the legislative history makes it clear that in enacting s 5, Parliament made a deliberate choice to retain the concepts of charity that had been developed in case law.[13] The Court noted that in referring to common law concepts in s 5, Parliament should be taken to expect the common law to continue to develop to meet fresh facts and changing perceptions of what justice requires, except where such developments would be inconsistent with the statute.[14]
[13]Greenpeace (SC), above n 7, at [16].
[14]At [17].
The Court then described the common law approaches as follows:[15]
[15]Some footnotes omitted.
Common law approaches to charitable purpose
[18] At common law, charitable status is recognised on a case by case basis, by analogy with previous common law authorities falling generally within the “spirit and intendment” of the preamble to the Statute of Charitable Uses 1601 (UK) 43 Eliz I c 4. Objects have been accepted to be charitable if they advance the public benefit in a way that is analogous to the cases which have built on the preamble to the 1601 Act.
[19] The Statute of Charitable Uses was legislation to reform abuses of charitable trusts which had not been employed “according to the charitable intent of the givers and founders”. It was contemporary with the Act for Relief of the Poor 1601 (UK) 43 Eliz I c 2 and seems to have reflected in part the importance of private philanthropy in reducing the burden on parish ratepayers of poor relief. The preamble to the Statute of Charitable Uses alluded to the various objects for which settlements had been made by monarchs and by “sundry other well-disposed persons”:
some for relief of aged, impotent and poor people, some for maintenance of sick and maimed soldiers and mariners; schools of learning, free schools, and scholars in universities; some for repair of bridges, posts, havens, causeways, churches, sea banks, and high ways; some for education and preferment of orphans; some for or towards relief, stock or maintenance for houses of correction; some for marriages of poor maids; some for supportation, aid and help of young tradesmen, handicrafts men, and persons decayed and others for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers …
[20] The touchstone of the “spirit and intendment” of the preamble does not require close focus on the specific purposes identified in it. The preamble itself set out purposes treated as charitable at the time. It was never regarded as an exclusive catalogue, but rather as “typical of the kind of charity which the State wished to encourage”. In their original form, the examples given “were unified by their association with the financial obligations of, or contributions to, a parish government’s purse strings.”
[21] The “spirit and intendment” of the preamble is the “accepted test” only “in a very wide and broad sense”. Rather the spirit of the preamble is looked to through the cases decided in the intervening centuries. The case‑law “endeavoured to keep the law as to charities moving … as new social needs arise or old ones become obsolete or satisfied”. In order to be within the “spirit and intendment” of the preamble, “one must find something charitable in the same sense as the recited purposes are charitable”.
[22] In 1891 Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v Pemsel[16] organised the cases into the classification which was adopted in earlier tax legislation in New Zealand and which is now expressed in s 5(1) of the Charities Act. In this, he drew on the four-fold classification earlier adopted by Lord Eldon in Morice v Bishop of Durham:[17]
First, relief of the indigent; in various ways: money: provisions: education: medical assistance: etc; secondly, the advancement of learning; thirdly, the advancement of religion; and fourthly, which is the most difficult, the advancement of objects of general public utility.
[23] Even though in popular understanding charity may have been principally associated with alleviating poverty, Lord Macnaghten in Pemsel considered that the technical legal meaning of charitable purposes had come to entail the four purposes: the relief of poverty; the advancement of education; the advancement of religion; and other purposes also beneficial to the community but not falling within the first three categories. Like all such common law restatements, and as the fourth category explicitly allows, the Pemsel classification itself is not set in stone. The law of charity has been acknowledged to be “a moving subject”.
[16]Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL).
[17]Morice v Bishop of Durham (1805) 10 Ves Jun 522, 32 ER 947 (Ch) at 532.
The Court noted that some had suggested that any object of benefit to the public is automatically a charitable object for the purpose of the fourth head.[18] However, it rejected that proposition:[19]
[29] The preponderance of authority since 1805 has required both public benefit and charitable object “in the same sense” as the cases developed from the preamble to the Statute of Charitable Uses. A single test may have the attraction of simplicity but loses the concept of charity which has always been essential. Identifying what is of public benefit without restriction to the kind of objects held to be charitable would set up a broad and less controlled assessment which could increase the entities entitled to charitable status. As was recognised in Canada by Iacobucci J when delivering the majority judgment of the Supreme Court in Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue, adoption of a single test of “public benefit” would “constitute a radical change to the common law and, consequently, to tax law”.[20]
[30] The language and structure of s 5(1) make it clear that, although “any other matter beneficial to the community” may qualify, the object must also be a “charitable purpose”. The method of analogy to objects already held to be charitable is also the safer policy since charitable status has significant fiscal consequences. Since the common law methodology is assumed in New Zealand by the Charities Act, we consider that it would not be appropriate for this Court to abandon the analogical approach in favour of the view that benefit to the public presumptively establishes the purpose as charitable.
[18]Greenpeace (SC), above n 7, at [24].
[19]Some footnotes omitted.
[20]Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue [1999] 1 SCR 10 at [200] [Vancouver Society].
We follow that approach in the present case.[21]
[21]The relevance of tax law to this approach was challenged: see below at [18](b).
When an entity applies for charitable status, the application is first considered by the Chief Executive of the Department of Internal Affairs | Te Tari Taiwhenua, who must then make a recommendation to the Charities Registration Board as to whether it should grant or decline the application for charitable status.[22] Section 18(3)(a) of the Charities Act provides that, in considering an application, the Chief Executive must have regard to:
(i)the activities of the entity at the time at which the application was made; and
(ii)the proposed activities of the entity; and
(iii)any other information that it considers is relevant …
[22]Charities Act, ss 18 and 19. We understand that. in practice, many decisions are made by Charities Services | Ngā Ratonga Kaupapa Atawhai (Charities Services), a unit of the Department of Internal Affairs | Te Tari Taiwhenua.
This requirement to consider the activities of the entity has some significance in the present case because, as discussed below, Family First argued that the Court should limit itself to consideration of the objects of Family First set out in the Trust Deed.
Issues
The lower Courts differed on whether Family First qualified for charitable status. To summarise, the High Court determined that Family First was not charitable under the fourth purpose identified in Pemsel (objects of general utility). Nor did Family First qualify under the second purpose (advancement of education). We call these the second and fourth heads respectively.[23] By majority, the Court of Appeal reversed the High Court decision in respect of both heads, making a declaration that Family First qualified for registration under the Charities Act.
[23]Family First did not argue that it had a purpose of the advancement of religion.
On appeal to this Court, there are three major issues for resolution:
(a)While the principal focus of the argument for Family First in the lower Courts was the fourth head, its case before this Court was firmly based on the second head. Therefore, the principal issue on appeal is whether Family First’s objects qualify as being for the advancement of education. A related issue is whether what we will call “viewpoint expression” (dissemination of materials that adhere to a particular viewpoint) can legitimately qualify as charitable within the meaning of the second head.
(b)Regarding the fourth head, the question is whether Family First’s object of promoting and supporting the institutions of family and marriage qualifies as advancing objects that are beneficial to the community.
(c)The appellant submits that even if Family First’s objects come within either or both of the second and fourth heads, it has other non-charitable objects that are not ancillary to any purpose found to be charitable. On the appellant’s view, this would be disqualifying. The issue is whether that contention is correct.
Several preliminary issues were also raised by the parties. First, Family First argues that, in determining whether its objects meet the requirements of the second or fourth heads, only the objects set out in its constitutional document, the Trust Deed, should be considered. So a preliminary question is whether the inquiry should be confined in that way, or whether the Court can go beyond the deed to consider evidence of Family First’s activities and publications. Second, the appellant’s written submissions included a colour-coded table headed “Assessment of material in case on appeal” that summarised by category and number the material in the case on appeal regarding Family First’s activities. Family First submitted that we should not take into account the information derived from this table, or its subsequent iterations. The question is whether that submission should be accepted (although, it largely turns on how this Court resolves the first preliminary issue).
Finally, a number of other issues were raised, but were not ultimately the subject of extensive submissions, so we deal with them only briefly. These are:[24]
(a)whether the observation in Greenpeace (SC) that the decision of the Court of Appeal in Molloy v Commissioner of Inland Revenue seems correct should be reconsidered (raised in Family First’s r 20A notice);[25]
(b)whether the fiscal consequences of a finding that an entity has charitable objects should be ignored by decision-makers (a point raised by CLAANZ); and
(c)whether the withdrawal of charitable status from an entity that engages in political advocacy interferes with the entity’s freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) (also raised by CLAANZ).
[24]CLAANZ also raised the possibility that tikanga may be a relevant factor in assessing whether an entity’s objects are charitable. But this was not pursued in argument and we think it is better to leave the point for consideration in a case where it may affect the outcome.
[25]Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA), as discussed in Greenpeace (SC), above n 7, at [73]. The r 20A notice called for a reconsideration of Greenpeace (SC) itself, but that was not pursued.
We will begin by dealing with the preliminary issues identified above at [17].
Considering activities as well as the constitution?
As noted earlier, counsel for Family First, Mr Bassett, argued that the purposes of Family First should be determined primarily by reference to its Trust Deed, rather than by a process that included reference to its actual activities. Where a trust deed is ambiguous or where the stated objects are generally unclear, it may be legitimate to have recourse to evidence of the trust’s activities. But otherwise, the ascertainment of a trust’s purposes is a matter of construction. He relied on the decision of Ellis J in Re The Foundation for Anti-Aging Research in support of that proposition.[26] CLAANZ as intervener supported Mr Bassett’s argument.
High Court and Court of Appeal
The High Court Judge considered both the objects set out in the Trust Deed and Family First’s activities in determining what its purposes were.[27] Family First argued in the Court of Appeal that this was an error of law.[28] That submission was largely accepted by the Court of Appeal.[29] The Court of Appeal majority[30] cited the following extract from Greenpeace (SC):[31]
The purposes of an entity may be expressed in its statement of objects or may be inferred from the activities it undertakes,[32] as s 18(3) of the Charities Act now makes clear.
[27]HC judgment, above n 10, at [19]–[32].
[28]CA judgment, above n 1, at [42].
[29]At [88]–[89], citing Hubert Picarda The Law and Practice Relating to Charities (4th ed, Bloomsbury Professional, Haywards Heath, 2010) at 27.
[30]CA judgment, above n 1, at [89].
[31]Greenpeace (SC), above n 7, at [14].
[32]Molloy, above n 25, at 693 per Somers J.
Relying on s 18(3) and Greenpeace (SC), the majority of the Court of Appeal reversed the approach taken by the High Court and affirmed what it termed the “orthodox view” that, as a rule, if stated purposes are clearly charitable, that is the end of the matter and an activities test is “not in order”.[33]
Our assessment
[33]CA judgment, above n 1, at [86]–[88]. The “orthodox view” referred to is argued to be the position at common law. We do not need to discuss just what that position was, as the issues in this proceeding are to be determined by reference to the statutory scheme.
We can deal with this point in short order. Section 18(3) makes it clear that the Chief Executive must have regard to the activities and proposed activities of the entity seeking charitable status when considering an application from an entity for registration as a charity. That requirement is not restricted to situations where the objects in the constitutional document of the entity are ambiguous or there is a concern they do not represent the true purposes of the entity. The Court of Appeal majority’s finding to the contrary was in error.[34]
[34]The Court of Appeal cited the judgment of Ellis J in Anti-Aging in support of its conclusion. Ellis J said the pre-2005 law was that the activities of an entity were relevant only where its constitutional documents were unclear or there was evidence the entity’s activities were inconsistent with its purposes. She considered it was unlikely that s 18(3) was intended to change that position:In the present case, s 18(3) is not directly engaged because the context for the case is deregistration, rather than registration. But it still applies indirectly. Section 32(1)(a) provides that the Board may direct that an entity be removed from the register if it is no longer qualified for registration as a charitable entity.[35] This necessarily requires the Board to consider whether the entity meets the essential requirements in s 13, which is the same inquiry that must be made when an entity applies for registration.
[35]As the High Court Judge pointed out, the reference to an entity “no longer” qualifying for registration means the focus will be on its activities since registration, because its purposes are unlikely to have changed: HC judgment, above n 10, at [59]. That indicates the inquiry relating to both registration and de-registration must include consideration of the activities of the entity.
Moreover, under s 50 of the Charities Act, the Chief Executive is empowered to examine and inquire into any charitable entity. The Chief Executive exercised that power in relation to Family First as part of the process that led to the second deregistration decision. Section 50(2) provides in relation to such an inquiry:
(2)The power to examine and inquire into any charitable entity or person under subsection (1) includes the power to examine and inquire into the following matters in connection with the charitable entity or person:
(a)the activities and proposed activities of the charitable entity or person:
(b)the nature, objects, and purposes of the charitable entity:
(c)the management and administration of the charitable entity:
(d)the results and outcomes achieved by the charitable entity or person:
(e)the value, condition, management, and application of the property and income belonging to the charitable entity or person.
We think it is clear that any decision-maker in relation to an application for charitable status must have regard to both the objects in the entity’s constitutional document and also its activities and proposed activities. That being the case, a decision-maker in relation to the proposed deregistration of a charitable entity must also consider the activities and proposed activities of the entity in question. As Simon France J noted, it would be strange if an inquiry to determine whether an entity should retain charitable status was not able to take into account what the entity actually did in order to ascertain whether it continues to pursue one or more charitable purposes.[36]
[36]HC judgment, above n 10, at [59].
In short, we consider the approach adopted by the High Court in this case was correct and that the Court of Appeal majority erred.
CLAANZ advanced a further argument, highlighting the following statement from the majority judgment in Greenpeace (SC):[37]
Where an entity seeking charitable status has objects or conducts activities that involve promoting its own views or advocacy for a cause, it may be especially difficult to conclude where the public benefit lies and whether the object or activities come within the spirit and intendment of the preamble to the Statute of Charitable uses.
[37]Greenpeace (SC), above n 7, at [32].
CLAANZ argued that this suggested that the Court is required to consider whether activities themselves are charitable. It said whether activities are charitable or not is irrelevant in charity law. It argued that we should depart from this aspect of the decision in Greenpeace (SC).
We do not see any reason to revisit this statement. There was no suggestion in Greenpeace (SC) that the Court was applying anything other than the s 13 test, which focuses on charitable purposes as defined in s 5 of the Charities Act. Rather, the Court was indicating that promotion of the entity’s own views or advocacy for a cause will pose the problem of identifying where the public benefit lies.
In summary, we consider the approach adopted by the High Court in this case was correct and that the Court of Appeal majority erred by reaching its conclusion that Family First was a charity under the second head, education, before it gave any consideration to Family First’s activities.[38]
Appellant’s table of Family First’s activities
[38]CA judgment, above n 1, at [97].
As mentioned earlier, counsel for the appellant’s written submissions included a colour-coded table headed “Assessment of material in case on appeal”, which summarised by category and number the material in the case on appeal about Family First’s activities.[39] Counsel said this table summarised “[t]he various causes Family First advocates for or against, and the nature and extent of this advocacy”. Mr Bassett pointed out a number of issues with this table in his written submissions, supported by an affidavit from Mr McCoskrie which set out a detailed response to the table. We provisionally admitted this affidavit at the hearing and said we would rule on its admissibility later. The appellant objected to its admission on the basis that it addressed a matter that should have been the subject of submission rather than evidence. While there may be some truth in that, the material in the affidavit was part of the process leading to the refinement of the table and should be part of the record of the appeal. We therefore admit it.
[39]The categories were “Submissions on Bills, policy work etc”, “Articles, posts, media releases”, “Research reports” and “Opinion pieces in newspapers”. The material in the case on appeal included evidence that was before the Charities Registration Board and additional evidence adduced in the High Court and the Court of Appeal.
In response to the issues raised by Mr Bassett and Mr McCoskrie, the appellant filed a second, corrected version of the table just before the hearing. Mr Bassett was given leave to file further submissions on the second version after the hearing, which led to a third version being filed. The third version was a substantial modification of the original table, now without duplications and triplications of items and items that were not generated by Family First, but sourced from other entities (mainly mainstream and third-party media organisations).[40] Although the appellant removed from the table the items sourced from other entities, counsel for the appellant did not concede these were irrelevant in considering the nature and scope of Family First’s activities.
[40]The categories in the third version of the table are “Submissions on Bills, policy work etc produced by Family First”, “Research reports produced or commissioned by Family First” and “Articles, media releases, videos and opinion pieces in newspapers (‘op-eds’) produced by Family First”.
Much of the controversy about the table was resolved by this process, but Mr Bassett maintained his objection to it. First, he argued much of the evidence represented in the table was not generated by Family First and was not necessarily a representative sample of its activities. Much of the material was selected by Charities Services from a “web trawl” of Family First’s website and was forwarded to the Charities Registration Board to assist in making the second deregistration decision. It therefore became part of the case on appeal in the High Court. Secondly, he said the table was produced for the first time in this Court, meaning the evidence was being used by the appellant to support its position as to the nature and scope of Family First’s activities in a way that had not occurred in the Courts below. Thirdly, the table gives equal weighting to any item on the website, so a comprehensive research report is treated as equal to a short media op-ed piece. He said the result was a skewed picture of Family First’s activities. Fourthly, it includes items dating from well before the second deregistration decision of the Board and also after it.
The table was not evidence, but rather a graphic representation of the evidence. That is, it is the method chosen by counsel to frame their submission about the evidence. We do not see any reason to interfere with the way counsel choose to present their case, subject of course to ensuring that the table does correctly represent the evidence it describes. While Mr Bassett’s concerns about the shortcomings of the earlier versions of the table were justified, we see them as largely resolved by the third version. We agree with Mr Bassett that the equal weighting of items can lead to a skewed picture. Mr Gunn accepted this. But the use of colour-coded categories ameliorates this to some extent.
We do not think Mr Bassett’s complaint about who selected the items that were highlighted for the Charities Registration Board is valid. It was Family First that referred Charities Services to its website during the investigation. It made submissions to the Charities Registration Board and also adduced further evidence in both the High Court and Court of Appeal. It therefore could have corrected any misleading impression if necessary. It did not seek to adduce evidence in this Court to do so. Nor did it suggest at any stage that the evidence described in the table was inadmissible.
We do not consider there is any need for the Court to confine its consideration to items that are dated before, but not well before, the Board’s decision. The case on appeal includes evidence filed with leave in the High Court and the Court of Appeal, as well as the evidence considered by the Board. All of it is before this Court and counsel for the appellant is entitled to rely on it.
Having said all that, we also acknowledge Mr Bassett’s submission that the table should not be taken as representing Family First’s activities with precision. There is a limit to the value of a quantitative analysis without also undertaking a qualitative analysis. But it does assist in getting an overall impression of the issues on which Family First focuses its attention, which can be considered alongside the more specific consideration of the individual research reports and other items.
Second head: Advancement of education
As mentioned earlier, the case for Family First was advanced in this Court on the primary basis that it qualified as a charity under the second head, the advancement of education. Family First argued that this could be taken from the purposes in its Trust Deed. In the event that this Court determined the activities of Family First were also to be considered, Family First argued that its publication of 17 reports of educational value, its conduct of annual family forums and its provision of a virtual reading room on its website together substantiated its claim that its purpose was the advancement of education.
Mr Gunn accepted that the 17 reports relied on by Family First as illustrating a purpose of advancing education meet the minimum standard set out in case law for what qualifies as being of educative value. But he argued they were, in truth, advocacy of a particular viewpoint or propaganda, which did not meet the requirements for a charity with the purpose of the advancement of education.
High Court
Although a secondary ground of appeal in the High Court, Family First challenged the decision of the Charities Registration Board that it did not qualify for registration under the second head. The Board had found that the material disseminated by Family First was advocating a particular point of view, which was not an educational purpose.[41]
[41]HC judgment, above n 10, at [40].
The High Court Judge said he understood it was conceded by Family First that its purpose was to promulgate a singular view of family (the traditional family). And if the point was not conceded, the Judge concluded that it was plainly the case that Family First’s purpose was to promote the traditional family unit.[42]
[42]At [60].
The Judge said it was not necessary to address the education/advocacy issue in detail. This was because it was clear that Family First advocated for law change in a variety of areas, some of which were for the public benefit and some of which were not. He saw those purposes as independent purposes rather than as purposes ancillary to an educational purpose. In fact, he thought the opposite was the case: education was undertaken to persuade people to Family First’s point of view and garner support for its efforts to effect the changes for which it advocated.[43]
[43]At [70].
The Judge considered that, apart from one report (prepared by the New Zealand Institute of Economic Research (NZIER), to which we will refer later) the publications of Family First, which were the best evidence that the trust was for the advancement of education, were all written from the same viewpoint, and promoted a cause favoured by Family First. This did not qualify for the advancement of education in a charitable sense.[44]
Court of Appeal
[44]At [71].
The majority of the Court of Appeal, Clifford and Stevens JJ, approached their analysis on the basis that the purposes of Family First should be determined primarily from the Trust Deed, adopting the approach of Ellis J in the Anti‑Aging case.[45] They saw a common thread of the advancement of education and research running through the objects in the Trust Deed.[46] The majority said the objects had a central theme, namely giving support to “marriage and family”. They also noted that one object specifically refers to educating the public on the institutional, legal and moral framework of a just and democratic society.[47] Thus, they considered the objects on their face promoted the advancement of education by facilitating research on, and public understanding of, the roles of marriage and the family in society.[48] The majority Judges were satisfied that the answer to the fundamental question, namely whether the charitable purposes of promoting and disseminating research about the family are “for a public good”, was yes.[49]
[45]CA judgment, above n 1, at [86].
[46]At [90]. The objects are set out below at [69].
[47]At [91].
[48]At [92].
[49]At [97].
The majority then analysed the reports commissioned by Family First and the manner in which Family First commissioned, distributed and promoted those reports. They concluded that Family First’s clear purpose in relation to those reports was stimulating public debate and participating in public discourse on important social issues relevant to families.[50] They considered the research materials commissioned by Family First illustrated that its activities were broadly consistent with the objects in the Trust Deed.[51]
[50]At [109].
[51]At [113].
The majority said the High Court Judge gave too much weight to the activities of Family First and too little to its objects in concluding that Family First’s activities were aimed at promoting causes.[52]
[52]At [121].
The majority concluded as follows:
[122] The evidence we have reviewed establishes Family First recognised the importance of its objects and purposes to commission research on, and educate the public about, the importance of marriage and family life (including core family values) in New Zealand society. Such research is valuable in promoting public knowledge about marriage and families and the many issues that affect the family. Public discussion and debate about such important issues is desirable to encourage the development of related policies and laws. The NZIER report is but one of many examples showing how Family First went about fulfilling its education and research objects.
Gilbert J, in dissent, said the High Court Judge was correct to deal with the second head (advancement of education) only briefly because the principal argument for Family First was that it qualified under the fourth head.[53] He noted Family First’s response to an inquiry from Charities Services was that it spent 75 per cent of its time on advocacy for specific causes and 25 per cent on administration, fundraising and supporter/database management. The response did not mention education.[54] He also noted that in its 14 years of existence, Family First had published only 21 reports.[55]
Legal test to be applied
[53]At [194]. He added that the critical issue in the case was whether Family First’s advocacy purpose qualified under the fourth head, in light of the decision in Greenpeace (SC), above n 7, at [196].
[54]At [195].
[55]At [195]. We were told the correct number is 17.
Family First’s essential case is that the objects set out in the Trust Deed include the promotion and advancement of research, educating the public and publishing material affecting families, all of which it says exhibit a purpose that falls within the advancement of education. This is assumed to be of public benefit unless the contrary is shown.[56] To evaluate this we will consider not only the objects set out in the Trust Deed but also the publications and activities of Family First.
[56]Greenpeace (SC), above n 7, at [27]; and National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31 (HL) at 65 per Lord Simonds [Anti-Vivisection].
In Re Collier, Hammond J summarised the law in respect of the second head of charity as follows:[57]
It seems to me that for a publication bequest of this kind to be upheld, it must first confer a public benefit, in that it somehow assists in the training of the mind, or the advancement of research. Second, propaganda or cause under the guise of education will not suffice. Third, the work must reach some minimal standard.
[57]Re Collier(deceased) [1998] 1 NZLR 81 (HC) at 91–92.
This echoes the formulation outlined by Iacobucci J in the majority judgment of the Supreme Court of Canada in Vancouver Society:[58]
… the purpose of offering certain benefits to charitable organizations is to promote activities which are seen as being of special benefit to the community, or advancing a common good. In the case of education, the good advanced is knowledge or training. Thus, so long as information or training is provided in a structured manner and for a genuinely educational purpose – that is, to advance the knowledge or abilities of the recipients – and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education.
[58]Vancouver Society, above n 20, at [169].
The formulation set out in Vancouver Society was endorsed in New Zealand by Ronald Young J in Re Draco Foundation (NZ) Charitable Trusts.[59]
[59]Re Draco Foundation (NZ) Charitable Trusts (2011) 25 NZTC ¶20-032 (HC) at [75] [Draco], referring to Vancouver Society, above n 20, at [171] (which is in similar terms to [169], quoted above).
The Court of Appeal considered the Vancouver Society formulation was narrow and contrasted it to the comments of Wilberforce J in Re Hopkins’ Will Trusts:[60]
… the word “education” … must be used in a wide sense, certainly extending beyond teaching, and that the requirement is that, in order to be charitable, research must either be of educational value to the researcher or must be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area which education may cover …
[60]Re Hopkins’ Will Trusts [1965] Ch 669 (Ch) at 680.
We agree that education should not be interpreted narrowly, although we do not share the Court of Appeal’s belief that the Vancouver Society test is necessarily narrower compared to the English position. In part, that is because Iacobucci J’s judgment actually sought to widen the meaning of ‘education’ by reference to the “more expansive approach taken by the English courts”.[61] Leaving that issue to one side, we consider that a helpful definition, endorsed by the majority in the Court of Appeal, is contained in Law of Charity as follows, and we are also content to adopt it:[62]
Overall, the advancement of education may be taken to mean the “advancement of education for its own sake in order that the mind may be trained” or that it assists in the training of the mind or advances research, which can include obtaining a commercial education. It is also evident that “this branch of law is not confined to teaching in the conventional sense. It extends to all branches of human knowledge and its dissemination”. This reflects the notion that “education”, and its advancement is a broad concept.
[61]In Vancouver Society, Iacobucci J began the discussion of education by highlighting how “‘advancement of education’ has been given a fairly restricted meaning” in Canada, traditionally being limited to “formal training of the mind” or the “improvement of a useful branch of human knowledge”: at [161]. However, he later commented that such limitations are “unduly restrictive” when compared to the English position, and that there is “much to be gained by adopting a more inclusive approach to education for the purposes of the law of charity”: at [168]. For that reason, he considered the law under the second head “should be modified” and that it was “worth considering the slightly more expansive approach taken by the English courts”: at [166]. To that end, he referred approvingly to the decisions in Re Hopkins’ Will Trusts, above n 60 and Inland Revenue Commissioners v McMullen [1981] AC 1 (HL) at 15, both of which take a broad view of charitable education. The approach in Vancouver Society is therefore reconcilable with the approach followed by the English authorities.
[62]Juliet Chevalier-Watts Law of Charity (2nd ed, Thomson Reuters, Wellington, 2020) at 141 (footnotes omitted), endorsed by the majority of the Court of Appeal: CA judgment, above n 1, at [82].
For the purposes of this appeal, however, the major question is whether Family First qualifies as advancing education in a charitable sense when its research reports, together with other supposedly educative material, put forward a singular viewpoint on the subject-matter. Charities law has long recognised a distinction between valid educational objects and merely political or propaganda-based objects. CLAANZ referred us to an article by Professor L A Sheridan, which illustrated the line between education and propaganda in these terms:[63]
There is a thin line, difficult to discern and possibly without great legal significance, but there all the same, between trying to convert people to a point of view and informing them of its existence and of the reasons for it – between propaganda and education.
[63]L A Sheridan “The Political Muddle – A Charitable View?” (1977) 19 Mal L R 42 at 70, cited with approval in Attorney‑General for NSW v The NSW Henry George Foundation Ltd [2002] NSWSC 1128 at [52].
Later, Professor Sheridan added:[64]
Nevertheless there is a valid distinction between a trust whose funds are to be spent converting people to a specified political objective and one whose funds are to be used to make knowledge of the arguments for a specified political objective more readily available.
[64]At 72.
Before elaborating on that distinction, it is first necessary to determine what effect (if any) this Court’s judgment in Greenpeace (SC) may have on what qualifies as “education” within the meaning of the second head. As we will come to later when discussing the fourth head, in Greenpeace (SC), this Court decided that the political purpose exception (which meant advocacy for political purposes was, of itself, a disqualifying factor for an applicant for charitable status) should no longer apply in New Zealand.[65] Although that case concerned the fourth head rather than the advancement of education, it raises the question as to whether the hard-and-fast distinction between education and propaganda or political advocacy should still apply in relation to the second head. To the extent that the distinction was solely based on the political purposes exclusion, there may have been grounds for reconsideration. However, we consider the better view is that the distinction is not solely founded on the former exclusionary rule. Rather, the distinction exists because propaganda does not provide the public benefit that comes from education (to which we revert below).[66] Consequently, the distinction between education and propaganda remains relevant following Greenpeace (SC) and is not substantially affected by it.
[65]See below at [125]–[130].
[66]Support for this proposition can be found in Tudor on Charities, which explains that propagandist material might not be charitable under the second head for either or both of the following reasons: (a) because it is not educational; or (b) because it runs afoul of the ‘political purposes’ exclusionary rule: William Henderson, Jonathan Fowles and Julian Smith Tudor on Charities (10th ed, Sweet & Maxwell, London, 2015) at [2-036], n 146 [Tudor on Charities].
Having resolved that preliminary issue, we turn to discuss the test governing the line between education and propaganda. For the most part, the case law illustrates a significant degree of confusion about how best to delineate between those objects. The line has become blurred. In Public Trustee v Attorney-General of New South Wales, Santow J observed:[67]
The cases on charities also involve some confusion between means and ends when it comes to their persuasive activities. There is a range of activity from direct lobbying of the government, to education of the public on particular issues, in the interests of contributing to a climate conducive to political change. The line between an object directed at legitimate educative activity compared to illegitimate political agitation is a blurred one, involving at the margin matters of tone and style.
[67]Public Trustee v Attorney-General of New South Wales (1997) 42 NSWLR 600 (SC) at 621.
This echoes Professor Sheridan’s comment about the thin line between education and propaganda. It also brings to mind this Court’s observation in Greenpeace (SC) (in relation to the fourth head) that determining whether advocacy qualifies as charitable will depend on a consideration of the end that is advocated, the means promoted to achieve that end and the manner in which the cause is promoted.[68]
[68]Greenpeace (SC), above n 7, at [76], set out below at [130].
Part of the disagreement between the lower Courts turned on whether putting forward a singular viewpoint is compatible with education. To summarise, on the High Court’s view, a second-head charity will ordinarily be disqualified where its educative materials are all written from one viewpoint. Expressing a view (or promoting a cause) will typically constitute advocacy, bringing the charity beyond the contours of the second head. The Court of Appeal’s reasoning allows more room for expressing a view, so long as the objects stated in the trust’s constitutional document are sufficiently education‑focused.
We think it is too simplistic to say that expounding a particular viewpoint on a topic will, of itself, rule out an educational purpose. As the majority in Greenpeace (SC) remarked in relation to the fourth head of charity, a blanket exclusion based on whether a trust’s objects are characterised as political or advocacy obscures focus on the true question — that is, whether the entity’s purposes qualify as charitable in the sense generally understood by law.[69] For second head charities, therefore, the relevant inquiry is whether the entity’s purpose is capable of securing the public benefits said to accrue from education even though the entity expresses a view on the subject-matter. As Professor Sheridan said in the article referred to earlier, “[e]xpounding important points of view, religious and otherwise, is part of the advancement of education”.[70] Similarly, Professor Dal Pont noted that a trust propagating reports containing a viewpoint may still be capable of educating the intended audience by increasing learning, understanding, skills or capabilities where the material allows recipients to “make up their own minds” on the subject-matter.[71]
[69]At [69].
[70]Sheridan, above n 63, at 70.
[71]G E Dal Pont Law of Charity (2nd ed, LexisNexis, Chatswood (NSW), 2017) at 187 and 198–199.
In Vancouver Society, the Supreme Court of Canada (as mentioned above) held that so long as information or training is provided for a “genuinely educational purpose” and not “solely to promote a particular point of view”, the entity may qualify as charitable under the second head.[72] Later in its decision, the Court clarified that viewpoint expression will disqualify an entity where its true object is “persuasion or indoctrination”.[73] In addition, where the entity’s purpose is educational there must be a “coherent relationship” between the means and the end, that is the activities undertaken to further the purpose and the purpose itself, “such that the activity can be said to be furthering the purpose”.[74] Similarly, the Federal Court of Appeal in Canada has ruled that educating from a “particular political or moral perspective” can qualify as charitable where the teaching does not cross into true advocacy.[75] The authors of Tudor on Charities summarise the means required in these terms:[76]
The public must be presented with neutral information so that they can choose for themselves and not be presented with slanted and selective information in support of a pre-conceived point of view.
[72]Vancouver Society, above n 20, at [169] (emphasis added).
[73]At [171], noting that educating people about a particular viewpoint in a “manner that might more aptly be described as persuasion or indoctrination” will not qualify as charitable education.
[74]Vancouver Society, above n 20, at [52] and [62] per L’Heureux-Dubé, Gonthier and McLachlin JJ. The majority (comprising Cory, Iacobucci, Major and Bastarache JJ) reached a different answer on the merits of the case, but followed a similar approach in assessing how direct the connection between the entity’s activities and purposes are, and whether those activities legitimately further the entity’s charitable purposes or not. Both the minority and majority agreed that activities must be assessed by reference to the purposes they are said to further and whether the relevant activities in-fact have the effect of furthering those purposes (see, for example, at [53]–[62], [152] and [199]).
[75]The Challenge Team v Revenue Canada (2000) DTC 6242 (FCA) at [1], referring to the comments in Vancouver Society, above n 20, at [169] that an activity is not educational in the charitable sense when it is undertaken solely to promote a particular point of view, rather than as part of a genuinely educational purpose which otherwise meets the requirements of the second head.
[76]Tudor on Charities, above n 66, at [2-036] (footnotes omitted), referring to Re Bushnell (deceased) [1975] 1 WLR 1596 (Ch) at 729 per Goulding J. For other expressions of the test, see for example Alliance for Life v Minister (National Revenue) [1999] 3 FC 504 (FCA) at [57] per Stone JA (students should “be in a position to weigh the viewpoints so advanced against opposing viewpoints in making up their minds one way or the other”); The Challenge Team, above n 75, at [1] (listeners must be able to make an “informed and critical choice”); Greenpeace of New Zealand Inc v Charities Registration Board [2020] NZHC 1999, (2020) 29 NZTC ¶24-071 [Greenpeace 2020] at [116(a)] (“objective, neutral and balanced”); Vancouver Society, above n 20, at [164] (material exhibiting a “strong” bias will “in most cases … disqualify” an entity under the second head); and Re Estate of Murphy [2005] NSWSC 104 at [37] (“neutral information so that they can choose for themselves”).
Professor Dal Pont also focuses on the requirement of objectivity. Reaching a viewpoint on the subject-matter can still legitimately further a charitable educational purpose where the relevant information is:[77]
… researched and presented in a balanced way that encourages awareness of different points of view, where appropriate, that it consider the arguments in an appropriate way related to the evidence, and if it reaches conclusions, that those conclusions be based on evidence and analysis.
[77]Dal Pont, above n 71, at [9.27] (emphasis added and footnote omitted).
Propagating general views on the subject-matter to help provoke study has also been found to be charitable in Australia.[78] In her dissenting judgment in the Aid/Watch case, Kiefel J commented that asserting one’s views may be “capable of being characterised as for the advancement of education” where the trust’s ultimate object is to advance education, not to persuade.[79] The distinction between education and propaganda was also discussed by Heydon J in his dissenting judgment in Aid/Watch. He described the function of the entity in that case as “not educative, but polemical” given that its main objective was to persuade people into a particular frame of mind.[80]
[78]See Royal North Shore Hospital of Sydney v Attorney-General for New South Wales (1938) 60 CLR 396 at 427, as discussed in Dal Pont, above n 71, at [9.27], n 183.
[79]Aid/Watch Inc v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 42, (2010) 241 CLR 539 [Aid/Watch] at [69]. See also at [84] where Kiefel J commented that the “views of the appellant are published on its website, but this is part of its campaign to persuade others of its views, not to educate them”.
[80]At [62]. The majority found that Aid/Watch qualified as a charity under the fourth head and did not therefore consider whether it had a purpose of the advancement of education: at [47]. See also the cases mentioned below at n 83 for further examples.
In summary, we consider that expounding a viewpoint will not necessarily disqualify an entity from charitable status. Viewpoint expression is not fundamentally incompatible with legitimate education — entities that expound a viewpoint may nevertheless have the purpose of bringing about the benefits generated by education, to which the presumption of charitability attaches. For example, they can “advance the knowledge or abilities of the recipients” per Vancouver Society,[81] or achieve the public benefit of what Professor Dal Pont refers to as the “value to society of having an educated population”.[82] However, where an entity which espouses a particular viewpoint claims an educative charitable purpose, the following principles will assist in assessing that claim:
(a)The entity’s purpose must genuinely be to educate rather than advocate for a cause. Where an entity’s direct purpose is to advocate not educate, its ends will not qualify as charitable under the second head. The cases recognise that persuasion is a feature common to both education-based and advocacy-based purposes. However, the question for the court will always be whether the relevant purpose crosses the line between mere education about the existence of a viewpoint and the case for it (with the hope that people may reach their own view on the merits to agree with the disseminator) and propaganda actively seeking to persuade, indoctrinate or “convert” the recipient to the disseminator’s view. Propagating a single viewpoint will be a strong indicator that the entity seeks to advocate not educate, but it is not an automatic disqualifier.[83]
(b)The means adopted will typically be the most helpful guide to assessing whether the relevant purpose is to educate or advocate. They must bear a coherent relationship to the purpose of providing charitable education. Where the means by which education is said to be advanced do not involve balance or general objectivity but are instead characterised by bias towards a particular outcome, that may indicate that the line between education and advocacy has been crossed. If it has, the entity will not qualify for registration as a charity under the second head, either because the means do not legitimately support any educative purpose, or because they illustrate the entity’s true purpose is advocacy.
[81]Vancouver Society, above n 20, at [169].
[82]Dal Pont, above n 71, at [9.18], citing R (Independent Schools Council) v Charity Commission for England and Wales [2011] UKUT 421 (TCC), [2012] Ch 214 at [111].
[83]Other cases which have found purposes to be on the wrong side of the education/advocacy line include: Buxton v Public Trustee (1962) 41 TC 235 (Ch) at 242–243 (“the creation of a climate of opinion”); Webb v O’Doherty [1991] TLR 68 (Ch) at 68 (“[c]ampaigning, in the sense of seeking to influence public opinion”); Aid/Watch, above n 79, at [62], referring to Re Collier, above n 57, at 93 (attempts to “influence public opinion” and “persuade people into a particular frame of mind” are not education); and Vancouver Society, above n 20, at [171] (“persuasion” or “indoctrination”). In Greenpeace 2020, above n 76, Mallon J observed at [113] that “advocacy aimed at persuading the public to adopt a particular attitude on some broad social question and ‘advancing education’ … are not the same”.
Where a purpose runs afoul of the above principles, it does not automatically follow that the entity cannot qualify for registration as a charity — rather, it means its qualification or otherwise will be determined under the fourth head, as recently modified by this Court’s decision in Greenpeace (SC).
We now turn to the application of the law to the present case.
Trust Deed and statement of principles
We begin our analysis by considering the objects of Family First that are set out in the Trust Deed. They are:
ATo promote and advance research and policy supporting marriage and family as foundational to a strong and enduring society
BTo educate the public in their understanding of the institutional, legal and moral framework that makes a just and democratic society possible
CTo participate in social analysis and debate surrounding issues relating to and affecting the family being promoted by academics, policy makers, social service organisations and media, and to network with other like‑minded groups and academics
DTo produce and publish relevant and stimulating material in newspapers, magazines, and other media relating to issues affecting families
ETo be a voice for the family in the media speaking up about issues relating to families that are in the public domain
FTo carry out such other charitable purposes within New Zealand as the Trust shall determine
Trustees are required to sign a Statement of Faith in the form set out in the Trust Deed as a condition of their appointment as a trustee.
Family First encapsulates its views on the significance of family and marriage in two statements of principles which appear on its website.[84] Mr Bassett argued these should not be considered because they are not constitutional, but we consider they are relevant to understanding what the objects of Family First are in fact. The statements of principle are:
[84]Those statements of principle are said to be adaptions, respectively, of material from:
(a) World Congress of Families “The Natural Family: A Manifesto”; and
(b) Witherspoon Institute “Ten Principles on Marriage and the Public Good”.
PRINCIPLES ON FAMILY
1. We affirm the intergenerational family as fundamental to society.
2. We affirm the natural family to be the union of a man and a woman through marriage for the purposes of sharing love and joy, raising children, providing their moral education, building a vital home economy, offering security in times of trouble, and binding the generations.
3. The natural family cannot change into some new shape; nor can it be re-defined by social engineering.
4. We affirm that the natural family is the foundational family system, but we acknowledge varied living situations caused by circumstance or dysfunction.
5. We acknowledge the tremendous contribution made by single, adoptive and step-parents and extended whanau in society. We wish to ensure they receive appropriate levels of assistance, without denying the clear empirical evidence that the best environment in which to raise children is the biological two-parent, husband-wife family.
6. We affirm the marital union to be the authentic sexual bond, the only one open to the natural and responsible creation of new life.
7. We affirm the sanctity of human life from conception to death; each newly conceived person holds rights to live, to grow, to be born, and to share a home with his or her natural parents bound by marriage.
8. We affirm that the natural family is prior to the state and that the task of government is to shelter and encourage the natural family.
9. We affirm that the world is abundant in resources. The breakdown of the natural family and the consequential moral and political failure, not human “overpopulation,” account for poverty, starvation, and environmental decay.
10.We affirm that the complementarity of the sexes is a source of strength. Men and women exhibit profound biological and psychological differences. When united in marriage, the whole becomes greater than the sum of the parts.
PRINCIPLES ON MARRIAGE
1. Marriage is a union of husband and wife, intended to be permanent.
2. Marriage protects and promotes the wellbeing of children.
3. When marriage weakens, children suffer from the disadvantages (economic, emotional, educational, social, spiritual) of growing up in homes without committed mothers and fathers.
4. Marriage elevates and protects our sexual nature.
5. Marriage sustains civil society and promotes the common good.
6. Marriage is a wealth-creating institution[.]
7. The laws that govern marriage should reflect the principles above[.]
As can be seen, the underpinning of these principles is that marriage consists of a permanent union of man and woman, which when functioning correctly delivers numerous benefits to society. A further core proposition is that the traditional marriage is the best model for delivering such benefits.
Looking at the objects set out in the Trust Deed, the only explicit reference to education is in object B. However, object A refers to promoting and advancing research and policy supporting marriage and family and object D refers to producing and publishing relevant material, all of which have potential application to the education ground of charity. All of these provisions are focused on the role of the family and the institution of marriage, which is referred to in neutral terms in the Trust Deed itself. However, the principles of family published by Family First make it clear that it is the “natural family”, being “the union of a man and a woman through marriage”, that is the family referred to in the Trust Deed.
This is confirmed by the “Family Policy Priorities” set out on the Family First website.[85] These are said to be the policies Family First will promote for all political parties to adopt. The policies are listed under these headings:
(a)Promoting marriage and families;
(b)Promoting life; and
(c)Promoting community values and standards.
[85]Family First New Zealand “Family Policy Priorities” < These policy priorities were set following a survey of Family First supporters in 2011. We were told that, in 2015, the agency responsible for administering the Charities Act, Charities Services, asked Mr McCoskrie to describe how Family First reaches decisions on which causes it advocates. He responded that Family First’s strategy was a continuation of what it had been doing for the past 10 years as per its Trust Deed and based on surveys and feedback from supporters.
The focus of the first of these on the traditional marriage is confirmed by some of the specific measures said to be policies advocated by Family First, such as:
(a)amending the tax and welfare systems to eliminate disincentives to marriage together with marriage penalties;
(b)protecting marriage in law as one man – one woman; and
(c)abandoning the concept of no‑fault divorce and placing the weight of the law on the side of spouses seeking to defend their marriage.
Family First’s position is that the natural family as described above is the “foundational family system” and that it cannot change into a new shape or be redefined by social engineering.[86] Thus, its position is that families other than the natural family are inferior and that marriage should be limited to a man/woman union.
[86]Principles on Family, above at [71]. The principles do, however, acknowledge other forms of family.
The second broad policy heading is promoting life. Under this heading, Family First advocates for a law change to prevent abortion, amongst other things, and opposes any law change to allow for euthanasia.[87]
[87]Presumably this will now be a policy of seeking repeal of the End of Life Choice Act 2019.
The third major priority is promoting community standards and values. Under this priority, amendments to the Prostitution Reform Act 2003 are advocated for, as is the reduction in access to pornography both generally but also specifically in respect of children, and a more family‑focused (rather than individual rights-based) approach to censorship.
For Family First, Mr Bassett supported the position of the majority of the Court of Appeal, that objects A–D of the Trust Deed promote the advancement of education by facilitating research on, and public understanding of, the roles of marriage and the family in society. Mr Bassett pointed out that the family is described as “the natural and fundamental group unit of society” in a number of international conventions to which New Zealand is a party.[88]
[88]Article 23 of the International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR]; the Preamble to the Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990); art 10 of the International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976); and art 16(3) of the Universal Declaration of Human Rights GA Res 217A (1948). In all cases, however, the term “family” is not defined in the narrow terms adopted by Family First, though art 23 of the ICCPR and art 16(1) of the Universal Declaration of Human Rights both refer to recognition of the right of men and women of marriageable age to marry and to found a family.
The appellant disputed the Court of Appeal’s view that objects A–D of the Trust Deed had a common thread of education and research. He argued the real object was advocacy.
We do not consider it is clear that the objects in the Trust Deed exhibit a purpose of the advancement of education. Object A refers to research, but makes it clear that such research is for the purpose of supporting its views in relation to marriage and the family. Object C refers to participation in social analysis and debate, which, on its face, is not an educative purpose. Object D refers to publishing relevant material relating to issues affecting families. That could potentially have educative value or it could be advocacy. It is not self‑evidently educational. Object B refers explicitly to education but is expressed in the broadest of terms. Again, we see this as potentially, but not self‑evidently, educational.
We next consider whether the activities of Family First (that is, the means by which Family First is said to advance an educational end) support the proposition that it exists for the purpose of the advancement of education.
Family First argues that it advances education through its dissemination of research reports, generation of public debate (in particular through its Forum on Families events), provision of a virtual reading room on its website, and the promotion of and participation in public discourse. We address each in turn.
Research reports
Family First points to 17 research papers, which it commissioned in the period between 2006 and 2018, exemplifying its educational purpose. The topics of these reports are:
(a)The fiscal benefits of marriage and reducing family breakdown in New Zealand;
(b)Should euthanasia be legalised?
(c)An analysis of New Zealand’s 2007 Anti‑Smacking Law;
(d)Child poverty and family structure;
(e)Gender identity;
(f)Screen time;
(g)Teenage sex education;
(h)Mothers, day care and child wellbeing in New Zealand;
(i)21 reasons why marriage matters;
(j)Young people and alcohol;
(k)Child abuse and family structure;
(l)Abortion and the physical and mental health of women;
(m)Imprisonment and family structure;
(n)Why mothers matter;
(o)Why fathers matter;
(p)The effect of regular family dinners on family life; and
(q)Childhood gender dysphoria.
Family First distributed these papers to people on its database, and released them publicly, accompanied by a media release. Copies are kept on Family First’s website. Some reports were also distributed in schools and churches.
As mentioned earlier, the appellant accepted that these reports are of educative value and meet the minimum standards in Re Collier.[89] However, the appellant argues that the reports are tendentious. They were commissioned and disseminated to support Family First’s point of view, which means they are not genuinely educative. They are used not to educate, but to advocate for, and persuade the reader to, Family First’s point of view.
[89]See above at [40]. See also the test from Re Collier quoted above at [51].
The High Court Judge described these reports as generally advancing a particular viewpoint, gathering together existing research in support. He did, however, acknowledge the academic credentials of some of the authors of these publications, particularly Dr Aric Sigman, a British psychologist, the author of the reports on young people and alcohol and on mothers, day care and child wellbeing;[90] Glenn Stanton, a director of a Family Institute in Colorado, the author of the paper on gender identity;[91] and Professor Rex Ahdar, a Professor of Law at the University of Otago | Te Whare Wananga o Otāgo, who prepared the report on euthanasia.[92] He also considered that the report commissioned from the NZIER addressing the financial benefits of marriage and the financial cost of family breakdown was original research by a recognised research and consulting body.[93]
[90]Aric Sigman Young People & Alcohol: What does the medical evidence tell us about the legal drinking age in New Zealand? (Family First New Zealand, 2011); and Aric Sigman Who Cares? Mothers, Daycare and Child Wellbeing in New Zealand (Family First New Zealand, 2012).
[91]Glenn Stanton Boys, Girls, Other: Making Sense of the Confusing New World of Gender Identity (Family First New Zealand, 2015).
[92]Rex Ahdar Killing Me Softly: Should Euthanasia Be Legalised? (Family First New Zealand, 2014).
[93]New Zealand Institute of Economic Research The Value of Family: Fiscal Benefits of Marriage and Reducing Family Breakdown in New Zealand (Family First New Zealand, October 2008) [NZIER Report].
The majority in the Court of Appeal described the authors of these research reports as varying from employed academics working in a professional capacity, qualified professionals working as self‑employed researchers and articulate laypersons without formal qualification relevant to the report they authored.[94] They highlighted another paper prepared by Dr Sigman entitled, We need to talk: Screen time in New Zealand.[95] They said this was a good illustration of Family First’s purpose of stimulating public debate and participating in public discourse on important social issues relating to families. The paper highlights problems arising from children having excessive discretionary screen time and proposes measures that can be taken to place limits on the amount of screen time children experience.
[94]CA judgment, above n 1, at [103].
[95]At [110], referring to Aric Sigman We need to talk: Screen time in New Zealand (Family First New Zealand, 2015).
Additionally, the majority of the Court of Appeal referred to Professor Ahdar’s paper on euthanasia, the NZIER report on the cost to society of family and marital breakdown and a paper by a bioethicist, Dr Gregory Pike, on the mental and physical risks of abortion for women.[96] They saw these reports as resembling a journal article in the relevant field. The majority also described the way in which these papers were commissioned by Family First.[97] In most cases, this involved Mr McCoskrie approaching authors to inquire whether they would produce a “New Zealand version” of a report written by a similar “family values” organisation overseas.
[96]At [106], referring to Gregory Pike Abortion and the Physical & Mental Health of Women: A review of the evidence for health professionals (Family First New Zealand, 2018).
[97]At [102].
To determine Family First’s continued eligibility for charity status, the Court must be satisfied Family First has a purpose of advancing education, having regard to the activities it undertakes. We begin by recording that we see the method by which Family First commissions its research papers as being consistent with the appellant’s contention that the papers were written from a particular viewpoint.
While that is not necessarily fatal to a claim to charitable status if the papers are written in an objective and balanced way, we do not consider that requirement is met in relation to the Family First papers. It is not the Court’s role to evaluate the merits behind the positions taken in the 17 research papers and, as mentioned earlier, the appellant accepted the papers met the “minimum standard” limb of the test set out in Re Collier. We do however observe that some of them are papers providing an analytical basis for a position adopted by Family First or data supporting that position. In that sense, they can be seen as potentially coming within the category of advocacy or, to use the word adopted by Hammond J in Re Collier, propaganda, which means those papers are not giving effect to an object of advancing education. Putting it another way, having reviewed the 17 papers relied on by Family First, we conclude that many of them fall on the “trying to convert” side of the line identified by Professor Sheridan. We agree with the High Court Judge that much of the material seeks to advocate for, and persuade people to, Family First’s point of view and garner support for its efforts to effect (or resist) change in the law or policy in the area to which the publication relates.[98]
[98]HC judgment, above n 10, at [70]. The papers most obviously in this category are the papers on euthanasia, the anti-smacking law, gender identity, sex education, mothers and daycare and alcohol (increasing the legal drinking age).
Mr Bassett argued that material that has educational value does not cease to be educational merely because it is underpinned by a viewpoint. For example, he said education provided to pupils in Christian schools, reflecting a Judeo-Christian world view of family, was still education.
We have already accepted that education underpinned by a viewpoint can still be education. But we do not accept the Christian schools analogy. A Christian school provides education in accordance with a particular curriculum, and for many subjects there is no difference between what is taught in a Christian school and what is taught in any other school. In the present case, the argument made by the appellant is that producing otherwise educational material for the purpose of validating and promoting a particular cause means the resulting product is not educational but is advocacy of the cause.
That brings us to the means by which Family First claims to advance education. We have already discussed the general requirement for an entity’s materials to be both balanced and objective to qualify under the second head. At the hearing, Mr Bassett referred to both Professor Ahdar’s paper and that of Dr Pike as examples of papers where an even-handed approach is taken. It is true that Professor Ahdar’s paper has sections on the case for euthanasia and the case against euthanasia, but in relation to the former, each argument is countered by the contrary view, so the section dealing with the case against begins with a statement that the points against have been largely covered in rebutting the points for. The conclusion is emphatic in opposing liberalising the law in relation to euthanasia. The examples from Dr Pike’s paper are references to a division of views in various studies as to whether, and if so, by how much, three specified physical or mental health risks are elevated by abortion. We see the reports as not being written in the neutral or balanced way that would support a claim to be advancing education, albeit from a particular viewpoint.
More generally, one of the affidavits of Mr McCoskrie filed after the Court of Appeal hearing identified a number of other entities that have taken an opposing position to that of Family First on issues such as abortion, cannabis law reform, gender identity and gay marriage, all of which are registered charities. We do not know the basis on which these entities achieved charitable registration or under which head they qualified. It may be that in their cases, the advocacy they undertook was ancillary to a recognised charitable purpose or was undertaken to advance a recognised charitable end such as advancement of human rights. If the purpose of presenting this information was to suggest that entities that have the object of advocating for the liberal side of a political debate are regarded as charitable while those that have the object of advocating for the conservative side are not, we do not accept that proposition. In principle, an entity that has non-ancillary purposes of advocacy on free-standing political issues will not be entitled to charitable status, whatever side of the debate it is on. It is the lack of any means available to the Court to judge the public benefit of a political issue that will usually count against charitable status. That applies equally to both sides of any political debate.
Fiscal considerations
CLAANZ submitted that the fact that obtaining charitable status has tax implications favouring the entity on which the status is conferred should not influence decision-makers in determining whether to recognise a new type of purpose as charitable in law.[173] Mr Bassett supported that submission. CLAANZ argued that this assumes the tax advantages for a charity are concessions from tax law, when it can equally be argued the non-taxability of charities is part of the definition of the tax base. We do not see that as altering the fact that there is a more favourable tax position for an entity that has charitable status than for an entity that does not.
[173]It cited in support of this Re Queenstown Lakes Community Housing Trust [2011] 3 NZLR 502 (HC) at [78] per MacKenzie J.
CLAANZ’s submission challenges the approach taken in Greenpeace (SC), where the majority observed that determining what constitutes a charitable purpose by the method of analogy to objects already held to be charitable was “the safer policy since charitable status has significant fiscal consequences”.[174] We do not consider any correction of that statement is required. The fiscal consequences are a reality that cannot be ignored. The Court in Greenpeace (SC) was not suggesting the fiscal consequences are a controlling factor, but rather that changing the analogical approach that has been followed may be outside what Parliament intended when it effectively determined that the pre-existing law should continue to apply. The only reason to reverse the statement made in Greenpeace (SC) would be if we were minded to abandon the analogical approach. We do not consider there is any good reason to depart from this methodology, which is long standing, was confirmed so recently in Greenpeace (SC) and reflects the common law method of incremental development of the law to adjust to societal changes.
Section 14 of the Bill of Rights
[174]Greenpeace (SC), above n 7, at [30] (footnote omitted). A similar position was taken by the Supreme Court of Canada in Vancouver Society, above n 20, at [200] per Iacobucci J for the majority.
CLAANZ submitted that the withdrawal of charitable status from an entity that engages in political advocacy may be an impermissible interference with the entity’s freedom of expression under s 14 of the Bill of Rights. This is said to arise because the entity loses the tax advantages that go with charitable status if that status is withdrawn.[175] This argument was raised in the Court of Appeal, but the Court did not engage with it.[176]
[175]This argument can be seen to run counter to the argument just addressed, that fiscal consequences are irrelevant.
[176]CA judgment, above n 1, at [181].
The same argument (in the context of a case about registration) was rejected by the Court of Appeal in Re Greenpeace of New Zealand Inc, the decision that was under appeal in Greenpeace (SC).[177] It found that a refusal to register as a charity an entity engaging in activities that had political objects did not breach s 14 of the Bill of Rights. Logically, the same must apply to the deregistration of an entity that has been registered as a charity. The Court of Appeal in Re Greenpeace cited with approval the following extract from the decision of the Canadian Federal Court of Appeal in Human Life International in Canada Inc v Minister of National Revenue:[178]
With respect to the Charter argument based on alleged infringement of freedom of expression, the basic premise of the appellant is untenable. Essentially its argument is that a denial of tax exemption to those wishing to advocate certain opinions is a denial of freedom of expression on this basis. On this premise it would be equally arguable that anyone who wishes the psychic satisfaction of having his personal views pressed on his fellow citizens is constitutionally entitled to a tax credit for any money he contributes for this purpose. The appellant is in no way restricted by the Income Tax Act from disseminating any views or opinions whatever. The guarantee of freedom of expression in paragraph 2(b) of the Charter is not a guarantee of public funding through tax exemptions for the propagation of opinions no matter how good or how sincerely held.
[177]Re Greenpeace of New Zealand Inc [2012] NZCA 533, [2013] 1 NZLR 339 at [59]–[60]. See also Better Public Media Trust v Attorney-General [2020] NZHC 350 at [80].
[178]Human Life International in Canada Inc v Minister of National Revenue [1998] 3 FC 202 (FCA) at [18].
CLAANZ argued that an analogy could be drawn with the Ontario decision Canada Without Poverty v Attorney-General of Canada.[179] In that case, the Ontario Superior Court declared unconstitutional a rule of the Canada Revenue Agency restricting the proportion of income a charitable entity may expend on political advocacy and the distinction drawn between political and charitable activities in the relevant legislation. The rule was said to be unconstitutional because it violated the freedom of expression provision in s 2(b) of the Canadian Charter of Rights and Freedoms. We do not see that case as persuasive in the present situation. It concerned a rule limiting the freedom of expression of an entity that had charitable status. That is different from the present situation, where the issue is whether Family First continues to meet the statutory requirements for charitable status. The reasoning in Human Life International in Canada applies.
[179]Canada Without Poverty v Attorney-General of Canada 2018 ONSC 4147, (2018) 142 OR (3d) 754.
CLAANZ also cited an article by Jane Calderwood Norton, in which she suggests that a Bill of Rights approach to a decision on charitable status may require a more expansive view of benefit when assessing entities engaged in advocacy and other political expression.[180] However, that was qualified by her later observation that, while entities that provide information to the public to ensure they are informed about proposed legislation and policy matters can be seen to be supporting democratic government, an entity that seeks to advocate for one side of a contentious dispute might have greater difficulty in demonstrating that it supports that same value. And, earlier in the same article, Dr Norton opines:[181]
There does not appear to be convincing authority for the argument that removing or denying charitable status is a limitation on freedom of expression. Removal of charitable status is more akin to the permissible withdrawal of a state subsidy rather than the suppression of political expression.
[180]Jane Calderwood Norton “Charities and freedom of expression” [2019] NZLJ 174 at 178. Dr Norton also observes that: “An organisation that seeks to take rights away from individuals or groups in society might have an even harder time showing that their purpose is beneficial”: at 178. That arguably applies to the discriminatory aspects of Family First’s objects.
[181]At 176.
We agree with that conclusion.
Result
For the above reasons, the appeal is allowed. We conclude that the Charities Registration Board was correct to resolve that Family First be de-registered. The declaration made by the Court of Appeal that Family First qualifies for registration under the Charities Act is set aside.
Costs
The appellant indicated that he was content for costs to lie where they fall. We therefore make no award of costs.
WILLIAMS J
I agree with the conclusions reached in the reasons given by O’Regan J and wish only to add a few comments of my own in relation to charitable purpose. Firstly, I acknowledge that since at least 1805, and probably before that, the law has studiously avoided the imposition of hard-and-fast boundaries between charitable and non‑charitable purposes.[182] Instead, the approach has been one of evolving delineation through decisions over time. This flexibility has enabled (it is said) the legal concept of charitable purpose to keep pace with social change.[183] Such change has relevantly included: the decline of village or parish communities and the rapid growth of large but segmented urban communities; the equally rapid growth of religious, political and ethnic diversity and the eventual acceptance of diversity as a core liberal democratic value; and the replacement of the Church by the welfare state as the primary provider of what each generation considers are core community supports. Charitable purposes have indeed evolved in response to these new contexts.[184]
[182]Morice v Bishop of Durham (1805) 10 Ves Jun 522, 32 ER 947 (Ch) declared that “charitable purposes” are those found in the Preamble to the Charitable Uses Act 1601 (Eng) 43 Eliz I c 4 [Statute of Elizabeth] or which by analogy fall within its spirit and intendment. The Morice judgment did however reduce the scope of charitable purpose by rejecting an old line of authority which appeared to accept that the only qualification was bestowal of public benefit, and adding that the donor’s purpose must also conform with the spirit of the list of purposes in the Preamble. In this way, Morice effectively chose to privilege flexible incremental elaboration by analogy over hard-and-fast rules.
[183]Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169 at [64]. See also the discussion in G E Dal Pont Law of Charity (2nd ed, LexisNexis, Chatswood (NSW), 2017) at 20, referring to several authorities at n 33 for the proposition that the legal concept of a charity is not static, but rather is flexible enough such that it “moves, changes and evolves with prevailing ideas about social values and attitudes in the society in question”. Writing in 1890, the Supreme Court of California remarked in Attorney-General v Dashaway Association 84 Cal 114 (1890) at 122 that the meaning of charity can transform to reflect “new fields and opportunities for human action” and the “differing condition, character, and wants of communities and nations”.
[184]See, for example, the authorities cited in Greenpeace, above n 183, at [70]–[71], including Latimerv Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA) (subsequently overruled by the Judicial Committee of the Privy Council but on different grounds); Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] 1 Ch 73 (CA); and Jackson v Phillips 96 Mass 539 (1867).
But one problematic effect of adaptive incrementalism with little guidance in principle has been the steady encrustation of contradictory decisions onto the charitable purpose canon — especially under the fourth (analogous) Pemsel head.[185] The modern growth of advocacy-based organisations seeking charitable status has highlighted the problem. Whatever public benefit such advocacy may be said to provide, it will almost always be less direct and less tangible than that provided by ‘works’-based charities.[186] For that reason, I have found it necessary, when thinking about the issues arising in this appeal, to begin (if only briefly) at the beginning.
[185]See, for example, Jackson, above n 184 (accepted that a bequest to promote the abolition of slavery was charitable but not a bequest for promoting women’s rights); and Re Cranston (deceased), Webb v Oldfield [1898] 1 IR 431 (CA) (accepted promotion of vegetarianism in London and Manchester was charitable by analogy). Growing the corpus of recognised “charitable purposes” by analogical reasoning means charity law has, some say, “built up not logically but empirically” (Gilmour v Coats [1949] AC 426 (HL) at 448–449), leading to a “great body of law” which may “appear illogical and even capricious” as its “guiding principle is so vaguely stated”: at 443. In Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297 (HL), Lord Normand said charity law’s general tendency towards historicism and analogy privileges empirical (rather than logical) development, which has “baffled efforts to reduce the law to systematized definitions”: at 309.
[186]Greenpeace, above n 183, at [102].
All societies place a high value on non-transactional giving to community; that is, on giving to support one’s wider community without expecting equivalent value in return (at least not in this life). It is one of the key ways in which social cohesion is supported. So, all cultures and religions (and therefore all legal systems) encourage such giving, whether by requiring it as a condition of membership or by incentivising it within the life of the community.[187]
[187]Tikanga Māori for example promotes social responsibility and cohesion by placing a high value on giving to one’s whānau, hapū or iwi, and to manuhiri (one’s guests). Core tikanga values reflect, or at least approximate, the multi valent English language idea of charity — aroha for charity itself, whanaungatanga for obligations to one’s community, kaitiakitanga for the responsibility to nurture community and place, mana for individual and community dignity, manaakitanga for generosity to outsiders and tika for social justice. In a completely different context, wealthy Roman citizens had an implicit obligation to give generously to the poor, and legal mechanisms like the fideicommissum (an ancestor of the trust) could, it seems, be invoked to secure compliance with the donor’s wishes (see C E F Rickett “Charitable Giving in English and Roman Law: A Comparison of Method” (1979) 38 CLJ 118). Relatedly, in Islam, the Waqf arose in the 7th century to provide for permanent charities seeking to advance social objects including infrastructure, socio-economic development and education (see Islamic Relief Academy Comparing the Effectiveness of Waqf and English Charitable Trusts (2015) at 7).
In the common law tradition, a convenient starting point is the Christian doctrine that made selfless giving to church and the needy a duty of all good Christians of means.[188] The word used by Paul (who was Greek‑speaking) in his epistle to the Corinthians to convey this Christian concept of selfless love was agape.[189]When the Roman Empire adopted Christianity as its official religion and the scriptures were translated into Latin, agape became caritas.[190] And when the first State-sponsored and sanctioned English language version of the Bible was completed in 1611 by scholars working under the direction of King James I, caritas became charity.[191] Most English versions of the Bible that pre-dated the King James version, and most modern versions, have preferred love as the better English rendering of caritas or agape.[192] It will come as no surprise that the Māori language versions of the Biblical references just cited use the term aroha to convey the same message.[193] That is because the match between aroha and agape or caritas is very close.
[188]Matthew 5:42–44 and 22:39–40 (King James Version).
[189]1 Kórinthos 13:1–13. A variation of the word agape also utilised in these verses is agapen. See the Online Greek Bible available at <
[190]1 Corinthios 13:1–13. A variation of the word caritas also utilised in these verses is caritatem. See the Latin Vulgate Bible available at < The Vulgate Bible was first commissioned in 382 AD.
[191]1 Corinthians 13:1–13. This work began in 1604, making it roughly contemporaneous with the Statute of Elizabeth, above n 182. King James I was crowned in 1603 following the death of Queen Elizabeth I.
[192]Older bible translations which preferred the word “love” include the Tyndale Bible 1534; the Coverdale Bible 1535; the Matthew Bible 1537; the Great Bible 1539; the Geneva Bible 1560; and the Bishops’ Bible 1568. Modern day bible translations which prefer the word “love” include Young’s Literal Translation 1862; the English Revised Version 1885; the American Standard Version 1901; the World English Bible 2000; and the Lexham English Bible 2010. See < for each bible.
[193]Matiu 5:42–44 and 22:39–40; and 1 Koroniti 13:1–13. The text generally accepted as authoritative in te reo Māori is the 1868 translation of Te Paipera Tapu, although a te reo Māori version of the entire New Testament had been printed by William Colenso in 1837. See Te Paipera Tapu available at <
Writers such as Professor Dal Pont and Gareth Jones have traced the migration of the scriptural idea of “charity” into medieval canon law generally, and the work of the English ecclesiastical courts specifically.[194] Operating under its (then) exclusive jurisdiction over testamentary causes, the ecclesiastical courts applied principles of canon law to enforce charitable bequests.[195] The beginnings of what have become known as the special privileges of charity law were developed in that court.[196] But by the 15th century, the Chancellor had established a parallel jurisdiction for enforcing charitable gifts and eventually, the ecclesiastical courts were displaced by the Court of Chancery. Even then, the Church retained a supervisory jurisdiction over charities until approximately the 18th century.[197] Most importantly, however, the Chancery Courts adopted and adapted the body of law developed by its predecessor.
[194]Dal Pont, above n 183, at 79–82; and Gareth Jones History of the Law of Charity 1532–1827 (Cambridge University Press, Cambridge, 1969) at ch 1. See also R H Helmholz “The Law of Charity and the English Ecclesiastical Courts” in Philippa Hoskin, Christopher Brooke and Barrie Dobson (eds) The Foundations of Medieval English Ecclesiastical History (Boydell Press, Woodbridge, 2005) 111.
[195]Helmholz, above n 194.
[196]Dal Pont, above n 183, at 79–82; and Jones, above n 194, at ch 1.
[197]The Statute of Elizabeth provided for a commission procedure to supervise the administration of charitable funds. One of the commissioners had to be the Bishop of the diocese in recognition of the Church’s historic role in delivering charitable services: Jones, above n 194, at 40. For various reasons, the commission procedure fell into disuse, with the last commission under the Statute of Elizabeth being sealed in 1787: at 160.
So, the common law of charity, with its historic and linguistic provenance in scripture, should not ignore the caution that mere giving, even to deserving causes, is not charitable, if the way it is done is self-regarding. This was the point Gray J made in the Massachusetts Supreme Court when he accepted that a charitable gift is “whatever is given for the love of God, or for the love of your neighbor … free from the stain or taint of every consideration that is personal, private or selfish”.[198] A purpose that, in its nature or implementation, is substantially self-regarding is not, I suggest, a charitable purpose. Before going on to explain my heresy, let me provide four caveats.
[198]Jackson, above n 184, at 556 (emphasis added), referring to the definition proposed in argument by Horace Binney in Vidal v Mayor of Philadelphia 43 US 127 (1844). As noted by Gray J, Mr Binney’s definition was endorsed by the Supreme Court of Pennsylvania in Price v Maxwell 28 Pa 23 (1857) at 35 (“If we were to attempt a definition which would embrace all gifts for charitable uses, we should adopt the language of … Mr Binney, as expressed in his argument in Vidal”).
First, I am not suggesting that charity law should be re-clothed in its original religious meaning. The common law and the Church parted formal company a long time ago and, in fact, the late 16th and early 17th century statutes in relation to the control of charitable uses were very much a part of that process of displacing the political and legal power of the Church and substituting Parliament and the secular courts.[199] My point is a different one. It is that by understanding the older doctrinal foundations of charity, underlying principles may be discerned that can still perform a useful organising function without disrupting our long preference for adaptive incrementalism. Those principles may help to avoid further inconsistency by guiding the search for true analogues. Principle can mitigate the tendency to undue subjectivity. It is a problem to which this subject is prone, due perhaps to the untethering of charity law’s technical rules from their principled beginnings.[200]
[199]Charitable Uses Act 1597 (Eng) 39 Eliz I c 6; and the Statute of Elizabeth, above n 182.
[200]As noted above at [163], n 183, the inherent flexibility of charity law has enabled it to keep pace with changing social values. While that may be virtuous, the system relies on judges acting as neutral gatekeepers regulating access to the benefits of charitable status. Some may not be equal to the task, especially given the historical tendency for judges to be drawn from a narrow social milieu. Such is the danger of the law’s aversion to hard-and-fast rules in circumstances where charity’s original principle of selflessness has fallen away. But see my comments below atSecond, I am not saying that the court must look into the heart of the donor or entity to determine whether their intent is sufficiently altruistic.[201] I accept that the approach of the law has been primarily instrumental and unconcerned with motive. Subject to a few contradictory exceptions, that has proved workable because the cases overwhelmingly relate to charitable works.[202] The works can speak for themselves. Pure advocacy of ideas or doctrines is different. Advocacy is less tangible, more prone to ambiguity, and therefore less straightforward. It requires closer attention to the objective character of the donor’s purpose.
[201]See Dal Pont, above n 183, at 21–23; and Hoare v Osborne (1866) 1 LR Eq 585 (Ch) at 588.
[202]See, for example, cases where an arguably selfish gift qualified as charitable because the law looks past subjective motives and focuses the analysis on whether the gift can objectively be characterised as publicly beneficial in the charitable sense: Hoare, above n 201; Re King, Kerr v Bradley [1923] 1 Ch 243 (Ch); Re Delius (deceased), Emanuel v Rosen [1957] 1 Ch 299 (Ch); Grant v Commissioner of Stamp Duties [1943] NZLR 113 (SC); and Re Spence, Barclays Bank Ltd v Mayor of Stockton-on-Tees Corp [1938] 1 Ch 96 (Ch).
Third, I accept, of course, that charitable giving will often involve a degree of self-interest. The payment of chantries to the Church helped, it was believed, to ensure the donor or their candidate obtained blessings in the next life,[203] while in modern contexts, gifts for parks, buildings or university endowed chairs often come with the condition that the thing funded be named for the donor (or that it be in honour of persons close to the donor).[204] Gifting public infrastructure to one’s own community, for example, will typically also involve self-interest because the donor will, by co‑residence, enjoy the fruits of their own charity.[205] But there is, or ought to be, a significant asymmetry in the exchange — the personal benefit to the donor will be far outweighed by the public benefit generated.[206] Put another way, where a purportedly charitable gift is made but the relevant benefits flow disproportionately to the donor (or their privees) rather than the wider public, there has, in truth, been no gift at all.
[203]Nelan v Downes (1917) 23 CLR 546, as cited in Dal Pont, above n 183, at 64 for the proposition that gifts for the saying of masses can qualify as a charitable purpose even if the “donor expects a spiritual advantage, whether personally or to another”. See also Re Hetherington (deceased) [1990] 1 Ch 1 (Ch) where the testatrix gifted money for the saying of masses “for the repose of the souls” of her family and herself after death. The gift was found to be charitable.
[204]See, for example, Re Mair (deceased) [1964] VR 529 (SC); McGrath v Cohen [1978] 1 NSWLR 621 (SC); and Cram Foundation v Corbett-Jones [2006] NSWSC 495. See also the authorities listed above at n 202. Additionally, in Donald Poirier Charity Law in New Zealand (Department of Internal Affairs, June 2013) at 102, the author gives one example of self-interested charitable giving where he said it is considered that Howard Hughes created the Howard Hughes Medical Institute as a mechanism for tax avoidance but it is one of the most important charitable organisations for carrying out biomedical research.
[205]See, for example, infrastructural gifts such as those listed in the Preamble to the Statute of Elizabeth (repair of bridges, havens, churches, causeways, sea banks and highways).
[206]I acknowledge that there are historical cases which have upheld as charitable trusts in which preference was to be given to a private class such as the donor’s family or descendants. See, for example, Spencer v The Warden and Fellows of All Souls College, Oxford (1762) Wilm 163, 97 ER 64; and Re Christ’s Hospital (1889) 15 App Cas 172 (PC). Similarly, in Attorney‑General v Sidney Sussex College (1869) LR 4 Ch App 722 (Court of Appeal in Chancery), a devise of land to colleges at Oxford and Cambridge for the education of the testator’s relations was assumed to be charitable, although the central question was one of construction rather than charitability. These cases (amongst others) are discussed in Jonathan Garton Public Benefit in Charity Law (Oxford University Press, Oxford, 2013) at 117–118. In my view those cases are wrong in principle and ought not to be followed. Compare Latimer, above n 184, in which funding research for claimants in the Waitangi Tribunal — almost all of whom represented iwi and hapū — was held to be a charitable purpose. This on the basis that the purpose is analogous, and iwi and hapū are communities rather than private classes of individuals.
Finally, and perhaps obviously, selflessness is in my view a necessary but not sufficient pre-condition for charitable purpose. The well-established rules governing qualification for charitable status are not displaced, but charity law’s original understanding of selfless giving can operate as a touchstone or organising theory to assist in dealing with the difficult cases.
With those caveats in mind, and as Re Greenpeace of New Zealand Inc held, especially with respect to advocacy, the charitable purpose inquiry is not just about ends.[207] Charity also consists in the manner and means by which the end is to be achieved.[208] The less self-evidently charitable the purpose of the giver, the more important the manner and means of achieving it become. Determining what constitutes charitable education and what qualifies as an analogous (fourth head) purpose will often require consideration of manner and means issues. This is where underlying principles can do some of the lifting.
[207]Greenpeace, above n 183, at [76].
[208]At [76].
First, education. Charitable education is not a narrow concept.[209] It is not just giving to schools, polytechnics and universities. It includes disseminating information and propagating ideas in the widest sense.[210] But the law still distinguishes between providing for education which is a charitable purpose and supporting the distribution of “propaganda” which is not.[211] The problem is that in this wider sense, one disseminator’s education is another’s propaganda. Deciding which is which can be a troublingly subjective exercise, and the line dividing one from the other can be difficult to discern in practice.[212] It is sometimes just a matter of degree.
[209]See the reasons given by O’Regan J at [51]–[55].
[210]Juliet Chevalier-Watts Law of Charity (2nd ed, Thomson Reuters, Wellington, 2020) at 141.
[211]Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL) at 564 per Lord Bramwell dissenting. See also Re Collier (deceased) [1998] 1 NZLR 81 (HC) at 91–92.
[212]L A Sheridan “The Political Muddle – A Charitable View?” (1977) 19 Mal L R 42 at 70.
One-sided promotion of personally held views or views one supports is not education in the charitable sense. Nor is disseminating information that only reflects the disseminator’s view. Why this is so, in principle, is important. There are, I suggest, two reasons why even if the subject matter is of great social importance, the one‑sidedness of the material neutralises its educative utility. First, promoting only one side of an idea or cause can detract from the cohesiveness of our pluralistic community because it ignores other perspectives on the same thing. Second, it does not respect individual dignity either, because it does not set out to empower the receiver to make up their own mind.[213] To the contrary, it can disempower the receiver by failing fairly to inform them of alternative views on the subject. Indeed, such self‑referential manner and means may actually produce social disbenefit. One-sided information is not about community; it is about self.
[213]See discussion on political purposes, autonomy and altruism in Matthew Harding Charity Law and the Liberal State (Cambridge University Press, Cambridge, 2014) at ch 6.
That does not mean that charitable education must be opinion-neutral. Far from it. The contest of ideas and perspectives is an important means by which liberal democracies such as ours adapt and thrive. And it is one of the protectors of our diversity. The advocate can still educate in a charitable sense, but their advocacy must acknowledge alternative perspectives fairly and respectfully. Such advocacy will be education because by acknowledging other perspectives it empowers the receiver to come to their own view. So, material that seeks to persuade in this way can be educative. The question to my mind is whether the persuading is done in a manner consistent with the underlying non‑self‑referential values of charity. There is, of course, no getting away from the fact that drawing the line between charitable and non-charitable education in advocacy cases will be a question of degree requiring an overall assessment, but that is where underlying principles can guide adaptive incrementalism.
In this case, Family First’s advocacy is plainly too one-sided and therefore too self‑referential to be education in the charitable sense. That overall impression is not mitigated by the occasional more balanced exception in the materials provided to the Court. Those exceptions serve only, through contrast, to confirm that there is no gift at all.
Turning then to the indefinite analogous head of charity, similar issues arise, and again, especially with respect to advocacy. Charities law has always been sceptical of situations where the stated purpose is advocacy for an idea, doctrine or perspective. This is for two reasons, I suggest. First, it is inherently difficult to demonstrate that mere advocacy produces tangible outcomes of public utility.[214] Not impossible, but difficult. Second, as noted in Greenpeace by reference to the American Restatement on Trusts, “a charitable trust does not exist to give satisfaction to those who believe in the cause it promotes”.[215] In other words, advocacy will often be too self-referential to meet the benefit requirement. Greenpeace did not change any of this. Rather, it confirmed that the gateway for pure advocacy-based purposes is narrow and provided a more satisfactory conceptual framework for analysis than did the problematic political purpose exception.[216]
[214]Greenpeace, above n 183, at [114].
[215]At [32], referring to American Law Institute Restatement of the Law (Third): Trusts (St Paul, Minnesota, 2007) at pt 3 ch 6 § 28.
[216]At [72]–[76].
Some (analogous) purposes are, it is said, self-evidently charitable. The promotion of human rights, protection of the environment and (in our particular context) the promotion of post-colonial reconciliation are among the examples referred to.[217] Self-evidently charitable perhaps means no more than that the court accepts there is broad consensus in the community about the utility of the purpose in terms of its contribution to social cohesion and well-being, and its consistency with underlying societal values, and that advocating for it will therefore also be charitable. That is not to say there must be social unanimity about the purpose’s benefits. Nor is it to say that agreement on how, or how far, the purpose should be pursued is required. It is just to accept that there is sufficient consensus about the purpose to suggest it has become as self‑evidently charitable as the promotion of religion, the advancement of education and the relief of poverty. And as with the specific heads of charity, manner and means will still be important.
[217]At [70]–[71], citing Latimer, above n 184, and the Charities Act 2006 (UK), s 2(2)(h). The corresponding section in the current legislation is s 3(1)(h) of the Charities Act 2011 (UK).
That said, promoting controversial causes or ideas will not of itself be disqualifying.[218] This is consistent with authority and (more importantly) the pluralist underpinnings of our democratic culture.[219] As noted in the education context, the contest of ideas and perspectives is a predicate for a thriving community. But care is obviously needed, and it is perhaps in this context that manner and means, and the original charitable principle of selflessness, become very important. An advocacy group that addresses a controversial topic in a balanced way may well be charitable, even if it ultimately favours one side or the other. Honesty and respect in debate is not self-referential. In fact it can contribute to social cohesion and the empowerment of individuals while respecting also the communicator’s right to their point of view. It can assist the community to navigate its way through difficult issues. And there is certainly no shortage of those right now.
[218]Greenpeace, above n 183, at [75].
[219]See for example Jackson, above n 184. Dal Pont notes that if popularity or broad social consensus were required for showing that an advocacy-based purpose qualifies as charitable, the law would devolve into a “battle between pollsters” and to the extent charities provide relief to minorities, a “popularity straightjacket would undermine the core function of many existing charities”: see Dal Pont, above n 183, at 24.
In this case, it does not much matter whether one describes Family First’s purpose as advocacy for the family or advocacy for a particular traditional or conservative view of the family. The key question is whether Family First’s manner and means of execution can be described as fair, balanced and respectful. As I have said, this will usually be a question of degree. For the reasons already traversed, I too am of the view that the answer to that question is plainly no.
I agree that the appeal should be allowed.
Solicitors:
Crown Law Office, Wellington for Appellant
Robert Brace, Solicitor, Waikanae for Respondent
Sue Barker Charities Law, Wellington for Intervener
[84]–[89], referring to Institution of Professional Engineers New Zealand Inc v Commissioner of Inland Revenue [1992] 1 NZLR 570 (HC) at 572 per Tipping J. Counsel also referred in his written submissions to Latimer v Commissioner of Inland Revenue [2004] UKPC 13, [2004] 3 NZLR 157 at [29] per Lord Millett.
Anti-Aging, above n 26, at [85]–[86]. We consider that, if that was the pre-2005 law, s 18(3) did change it.
[179]–[180].
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