Family First New Zealand v Attorney-General
[2020] NZCA 366
•27 August 2020 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA574/2018 [2020] NZCA 366 |
| BETWEEN | FAMILY FIRST NEW ZEALAND |
| AND | ATTORNEY-GENERAL |
| Hearing: | 22-23 October 2019 (further submissions 12 March 2020) |
Court: | Clifford, Gilbert and Stevens JJ |
Counsel: | P D McKenzie QC and I C Bassett for Appellant |
Judgment: | 27 August 2020 at 9.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe decision of the Charities Registration Board dated 21 August 2017 to remove Family First New Zealand from the Charities Register is set aside.
CThere is a declaration that Family First New Zealand qualifies for registration under the Charities Act 2005.
____________________________________________________________________
REASONS
Clifford and Stevens JJ [1]
Gilbert J (dissenting) [185]
CLIFFORD AND STEVENS JJ
Table of Contents
Introduction [1]
Background
Charitable purposes [6]
Family First’s purposes [9]
First deregistration decision [13]
Appeal against first deregistration decision [19]
Second deregistration decision [30]
High Court judgment [37]
This appeal
Family First’s submissions [41]
The Attorney-General’s submissions [50]
CLAANZ’s submissions [53]
Additional evidence [56]
Our analysis
Overview [59]
General principles [61]
Presumptively charitable under the second head of the
advancement of education? [74]
Family First’s objects [86]
Implementation and advancement of the objects [98]
Charitable under the fourth head of public benefit? [123]
Non-charitable and non-ancillary advocacy for specific
political/legislative responses? [156]
Human rights law considerations [177]
CLAANZ submissions [181]
Result [182]
Introduction
Family First New Zealand (Family First) appeals against a judgment of Simon France J dismissing its appeal from a decision of the Charities Registration Board (the Board) to deregister it as a charity.[1] The High Court confirmed the Board’s determination that Family First did not qualify for registration. This was because Family First’s core purpose was said to be to promote its conception of the “traditional family” and that purpose could not be shown to be in the public benefit in the charitable sense under the Charities Act 2005 (the Act). Further, Family First was found to have other non‑charitable advocacy purposes which would disqualify it from registration.[2]
[1]Re Family First New Zealand [2018] NZHC 2273 [High Court judgment].
[2]At [74].
Family First says the High Court was wrong to conclude that what it perceived to be Family First’s support of traditional views on marriage and family issues meant its purposes were not charitable. It says that its objects are:
(a)presumptively charitable, to the extent they involve education relating to the role and importance of marriage and family life in New Zealand today; and
(b)charitable to the extent they involve the purpose of promotion of, and advocacy for, the public good that the institutions of the family and marriage comprise in New Zealand society today.
To the extent that any of Family First’s associated activities may be non‑charitable — in that they promote specific legislative steps that cannot be said to constitute a public good or benefit in the charitable sense, those activities are merely ancillary to its charitable purposes and do not disqualify it from registration as a charitable trust.
The Attorney-General endorses the High Court’s approach.
The Charity Law Association of Australia and New Zealand (CLAANZ) intervenes with leave of the Court to address two issues of principle:
(a)In determining whether a political advocacy organisation exists for a charitable purpose of public benefit, whether wider benefits flowing from the means and manner of its political advocacy, including from the fact of that advocacy itself, should be taken into account;
(b)Whether the removal of a tax subsidy to a previously registered charitable organisation engaged in political advocacy could be viewed as an unreasonable limit on its right to freedom of expression.
Background
Charitable purposes
To qualify for registration as a charity, an organisation must be established and maintained exclusively for charitable purposes.[3] “Charitable purpose” has no clear, set meaning. It is broadly defined in s 5(1) of the Act:
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.
These four categories (relief of poverty, advancement of education or religion, or any other matter beneficial to the community) are commonly referred to as the four “heads” of charity. Implicit within the concept is that of “selfless”, for the other, activities.
[3]Charities Act 2005, s 13(1)(b)(i).
A trust, society or institution with charitable purposes, but which also has non‑charitable purposes and hence is not exclusively charitable, may not be registered. However, a non-charitable purpose that is merely ancillary to a charitable purpose is not of itself disqualifying. Section 5(3) and (4) provide:
(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.
Section 18(3) of the Act directs the Chief Executive of the Department of Internal Affairs to consider the activities of an entity, actual and proposed, when considering its entitlement to registration upon receiving an application for registration. Such consideration will similarly be relevant for ongoing registration.
Family First’s purposes
Family First was formed by a deed of trust dated 26 March 2006. Its objects are set out in its trust deed as follows:
A.To promote and advance research and policy supporting marriage and family as foundational to a strong and enduring society
B.To educate the public in their understanding of the institutional, legal and moral framework that makes a just and democratic society possible
C.To 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
D.To produce and publish relevant and stimulating material in newspapers, magazines, and other media relating to issues affecting families
E.To be a voice for the family in the media speaking up about issues relating to families that are in the public domain
F.To carry out such other charitable purposes within New Zealand as the Trust shall determine.
Family First encapsulates its views on the significance of family and marriage in two statements of principles which appear on its website:
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 whānau 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[4]
[4]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”.
Family First promotes those views, and seeks to generate public debate and social analysis to contribute to the deliberations of the community, through the development and dissemination of various forms of research on a wide range of issues of general concern relating to families and marriage, such as family economics, sex education and excessive screen time. It also engages from time to time in community discussion and debate (including through the media) on what it sees as related, specific, legal issues. Since its establishment in 2006 these have included issues such as divorce, prostitution, pornography, broadcasting standards and censorship, availability of alcohol and tobacco, gambling, abortion, euthanasia, embryonic cell research and the “anti-smacking” legislation.
As seen in its statements of principles, Family First takes a relatively traditional approach to the importance of families and marriage. It takes a similar approach on the related more specific issues on which it also engages in public discourse. Thus, and for example, it seeks to discourage divorce, is opposed to the liberalisation of laws relating to prostitution and the availability of abortion, sought an exemption for “light smacking” from the anti-smacking legislation and currently opposes the law changes which would or might follow “yes” votes in the forthcoming referenda on cannabis and euthanasia.
First deregistration decision
Family First was incorporated under the Charitable Trusts Act 1957 on 6 April 2006 under the name Family First Lobby. It changed its name to Family First New Zealand in November 2006 and was registered on the Charities Register with effect from 21 March 2007.
The Board is responsible for ensuring that all entities on the Charities Register meet the criteria for registration. On 15 April 2013, following an investigation, the Board resolved to deregister Family First as a charity.[5] The Board described Family First’s main purpose as being:[6]
… to promote the view that the “natural family” (defined by the Trust as the union of a man and a woman through marriage) is the fundamental social unit, and should be supported as such to the exclusion of other family forms (described by the Trust as “incomplete or fabrications of the state”).
(Footnote omitted.)
[5]Family First New Zealand (CC42358) Charities Board Decision 2013-1, 15 April 2013 [First deregistration decision].
[6]At [3].
On that basis, the Board determined Family First did not qualify for continued registration as a charity. The Board considered that Family First’s main purpose of promoting its views about family was a non-charitable “political” purpose without any self-evident public benefit. Central to that decision was the Board’s assessment that Family First promoted a specific point of view about what is best for family and civil society. Referring to Family First’s Principles on Family, its adaptation of the World Congress of Families’ “The Natural Family: A Manifesto”, the Board concluded that the Trust’s “perspective on family can be fairly described as an opinion on what is best for families and civil society. Each of the propositions affirmed by the Trust [in that adaptation] is a matter of opinion or value‑judgment”.[7] Moreover, that perspective was one which was controversial in the relevant sense: that is, its benefit to the public was not self-evident as a matter of law.[8] Similarly “controversial” were Family First’s views on the various specific legislative issues it focussed on over time.
[7]At [45].
[8]At [46].
The Board was also not persuaded that Family First’s promotion of its views about family and marriage qualified, as Family First had claimed, as the advancement of religion or education.[9]
[9]At [57] and [77].
To the extent Family First had an independent purpose to procure governmental actions, that was a non‑charitable political purpose that was not ancillary to any charitable purpose.[10]
[10]At [100].
The Board summarised those reasons as follows:[11]
First, the Trust’s main purpose is to promote points of view about family life, the promotion of which is a political purpose because the points of view do not have a public benefit that is self-evident as a matter of law. The Board’s view on the Trust’s main purpose is [as quoted in [14] above]. Secondly, the Board considers that the Trust’s purpose to promote points of view about family life is not a charitable purpose to advance religion or education, nor a purpose beneficial to the public within the fourth category of charity at general law. Thirdly, the Board considers that the Trust has an independent purpose to procure governmental actions (including legislation, policies and governmental decisions) consonant with the Trust’s point of view. This purpose to procure governmental actions is a political purpose that is not charitable, and is not ancillary to any valid charitable purpose of the Trust.
Appeal against first deregistration decision
[11]At [2].
The Board’s decision was made in accordance with this Court’s judgment, Re Greenpeace of New Zealand Inc, which held that an entity established for contentious political purposes could not be said to be established principally for charitable purposes.[12] Greenpeace was granted leave to appeal the correctness of that decision to the Supreme Court. Given the Board’s identification of Family First’s political purpose as disentitling it to registration, Family First’s appeal to the High Court against the first deregistration decision was deferred until after Greenpeace’s appeal to the Supreme Court had been determined.
[12]ReGreenpeace of New Zealand Inc [2012] NZCA 533, [2013] 1 NZLR 339 at [60].
The Supreme Court allowed the Greenpeace appeal.[13] Significantly, for present purposes, the Court held by a majority, contrary to earlier authority and this Court’s appealed judgment, that the Act does not create a general exclusion of advocacy from charitable purposes, even where it is more than an ancillary purpose.[14] Further, the majority held there is no standalone doctrine of exclusion of political purposes.[15] It held that a charitable purpose and a political purpose were not mutually exclusive. This was a departure from previous domestic and international case law which had consistently held that, if an entity had a main purpose that was political in nature, it would automatically be denied charitable status.[16] The majority concluded:
[115] Section 5(3) of the Charities Act does not enact a political purpose exclusion, codifying the common law. It provides that non-charitable purposes do not affect charitable status if no more than ancillary and includes “advocacy” as an example of such ancillary non-charitable purpose. It does not deal with the case where promotion of views is properly regarded as charitable in itself. Such cases are likely to be unusual.
[13]Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169.
[14]At [57]–[58] per Elias CJ, McGrath and Glazebrook JJ.
[15]At [59], [72] and [114]–[115].
[16]For example, see Re Wilkinson [1941] NZLR 1065 (SC) at 1077; Knowles v Commissioner of Stamp Duties [1945] NZLR 522 (SC) at 528; and Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA) at 695, referring to Bowman v Secular Society Ltd [1917] AC 406 (HL) at 442.
In reaching those conclusions the majority were unable to agree with this Court’s suggestion that advocacy of generally accepted views may be charitable, while advocacy of highly controversial views was not.[17]
[17]Re Greenpeace of New Zealand Inc, above n 13, at [75].
The Supreme Court emphasised, however, that it is not sufficient for the objects to be of benefit to the community. Rather, the benefit must also be charitable in the sense used by the common law.[18] The majority considered the advancement of causes “will often, perhaps most often, be non-charitable” because it will not be “possible to say whether the views promoted are of benefit in the way the law recognises as charitable”.[19]
[18]At [113].
[19]At [73].
At the same time it said:
[74] It may be accepted that the circumstances in which advocacy of particular views is shown to be charitable will not be common, but that does not justify a rule that all non-ancillary advocacy is properly characterised as non‑charitable. …
…
[76] Instead, assessment of whether advocacy or promotion of a cause or law reform is a charitable purpose depends on consideration of the end that is advocated, the means promoted to achieve that end and the manner in which the cause is promoted in order to assess whether the purpose can be said to be of public benefit within the spirit and intendment of the 1601 Statute. These principles are discussed further below in the course of considering Greenpeace’s purposes.
In allowing Family First’s appeal to the High Court against the Board’s first deregistration decision, and referring the question of its entitlement to registration back to the Board, Collins J, having noted the significance of the Board’s conclusion that Family First was engaged in political activity for its deregistration decision, observed:[20]
However, the Charities Board proceeded on the basis that Family First’s political purposes could not be classified as a charitable purpose. This approach dominated and affected many features of the decision of the Charities Board, including its reasoning that Family First’s purposes fell within the Charities Board’s second category of political purpose, in part, because Family First’s views were “controversial”. …
[20]Re Family First New Zealand [2015] NZHC 1493 at [83].
The Judge then concluded that the Board’s fundamental proposition, that Family First’s political objectives could never be charitable, could not be reconciled with the approach taken by the majority of the Supreme Court in Greenpeace. The Board’s decision was based, therefore, upon a fundamental legal proposition that had subsequently been found to be incorrect.[21]
[21]At [84].
Likewise, the Board’s characterisation of Family First’s advocacy as “controversial” required reconsideration.[22]
[22]At [85].
Turning to the question of possible charitable purpose under the fourth head, benefit to the public, Collins J observed:
[89] I am saying, however, that the analogical analysis which the Charities Board must undertake should be informed by examining whether Family First’s activities are objectively directed at promoting the moral improvement of society. This exercise should not be conflated with a subjective assessment of the merits of Family First’s views. Members of the Charities Board may personally disagree with the views of Family First, but at the same time recognise there is a legitimate analogy between its role and those organisations that have been recognised as charities. Such an approach would be consistent with the obligation on members of the Charities Board to act with honesty, integrity and in good faith.
(Footnote omitted.)
The Judge also commented on Family First’s submission that it had the charitable purpose of advancing education, and the Board’s assessment, rejecting that submission, that Family First “advanced its polemic points of view under the guise of research and that it was not genuinely involved in the advancement of education”.[23] As the Judge correctly summarised the position:
[91] To be a charitable education activity, the entity must, in addition to conferring a public benefit, promote learning which may be undertaken through a variety of means such as training programmes, conferences or by carrying out or disseminating research that improves knowledge about a particular issue.
(Footnote omitted.)
[23]At [90].
In that context, the Judge commented on one particular piece of research that, at the hearing before him, the Board had acknowledged was “a legitimate piece of research”:[24] namely the report entitled “The Value of Family: Fiscal Benefits of Marriage and Reducing Family Breakdown in New Zealand” commissioned by Family First from the New Zealand Institute of Economic Research (NZIER).[25] The Judge said the Board would need to “carefully examine” that report and determine whether it was sufficient to qualify Family First’s activities as including the advancement of education for the public benefit.[26] The Board was therefore directed to reconsider the question of Family First’s registration in light of this.
Second deregistration decision
[24]At [93].
[25]NZIER “The Value of Family” (Family First New Zealand, October 2008).
[26]Re Family First New Zealand, above n 20, at [94].
Following its successful appeal, Family First filed further submissions and provided further information regarding its activities to assist the Board in its reconsideration of the question of deregistration. Family First did not pursue the proposition that it was a trust for religious purposes. Rather, Family First claimed (relying on the fourth head) its purposes were either analogous to purposes the courts have previously accepted as being charitable — the promotion of moral and mental improvement — or, again and relying on the second head, involved the advancement of education.
On 21 August 2017, the Board confirmed its earlier decision that Family First should be deregistered.[27] The Board accepted Family First’s submission that an object of promoting moral and mental improvement could be regarded as a charitable purpose under the fourth head of charity.[28] However, the Board found that Family First’s main activity involved advocacy for the advancement of its “Family Policy Priorities”, described on its website as follows:[29]
a.“Promoting marriage and families” (which includes advocacy on a wide range of issues in relation to marriage, divorce, child abuse, the availability of alcohol, tobacco and gambling, taxation of families, aged care and sex education).
b.“Promoting life” (which includes advocacy against abortion, to maintain the status quo on euthanasia and against embryonic cell research).
c.“Promoting community values and standards” (which includes advocacy to change prostitution laws, reducing the availability of pornography and for stricter broadcasting standards and censorship).
[27]Family First New Zealand (CC10094) Charities Board Decision 2017‑1, 21 August 2017 [Second deregistration decision]. The Board followed a three-step process proposed by Ellis J in Re The Foundation for Anti-Aging Research [2016] NZHC 2328, (2016) 23 PRNZ 726 at [88].
[28]Second deregistration decision, above n 27, at [17].
[29]At [25].
The Board found Family First advocates its Family Policy Priorities in various ways using a range of media. It publishes media releases, articles and other opinions supporting its views on its website. It sends pamphlets to families and churches. It provides columns for the Christian Life Magazine, emails newsletters to supporters and hosts an online television channel. It also conducts opinion polls, commissions reports, and makes submissions on legislation. In addition, Family First holds annual conferences and church leader events.[30]
[30]At [26].
Ultimately, the Board was not satisfied Family First’s advocacy could be regarded as being for the benefit of the public:[31]
Most of the advocacy of Family First concerns advocacy on issues where there are two sides to an argument on a topical social issue, neither of which has been determined to be for the benefit of the public.
[31]At [33].
The Board then addressed whether Family First had a charitable purpose to advance education. The Board considered an organisation advancing a cause through the dissemination of research promoting a particular point of view cannot claim an educational purpose.[32] Rather than seeking to advance education through its reports, the Board considered Family First sought to persuade readers and decision‑makers to its point of view.[33] With one exception — the NZIER report — the reports relied on by Family First to substantiate this ground were categorised by the Board as “propaganda or cause [advocacy] under the guise of research”, adopting the description used by Hammond J in Re Collier.[34] The Board considered these reports lacked an independent and objective starting point in the analysis and merely sought to persuade the reader to a particular point of view consistent with Family First’s Policy Priorities.[35]
[32]At [41].
[33]At [45].
[34]At [47], citing Re Collier [1998] 1 NZLR 81 (HC) at 91.
[35]At [52].
Whilst the NZIER report was capable of advancing education, the Board did not accept Family First advanced education through that report. That was because in the Board’s assessment the media release accompanying the report did not present the results objectively and instead used them in a manner that advanced Family First’s views.[36]
[36]At [50].
Family First appealed to the High Court against the second deregistration decision.
High Court judgment
Simon France J observed that the NZIER report commissioned by Family First in 2008 confirmed the significant fiscal cost to society of family breakdown and decreasing marriage rates. The Judge also noted the societal cost, seen in areas such as the criminal justice sector, of children and young persons not being raised in a supportive environment. The Judge considered that if Family First’s purposes were solely to promote the role of the family, it would have a strong claim to charitable status.[37]
[37]High Court judgment, above n 1, at [57].
But, the Judge held, the evidence did not establish that the achievement of Family First’s object of promoting the traditional family would be a benefit to the community in the sense required by charity, particularly if it came at the expense of other forms of family.[38] With regard to the fourth head of charity submission the Judge stated:
[65] I accept that some or many may agree with aspects of Family First’s position, but just as controversy is not a block, nor is the fact that a significant number agree with its position a pathway to charitable status. The narrow issue in these advocacy cases is whether a body whose main or indeed sole function is to promote a viewpoint is a charity. The advocacy cases where charitable status has been acknowledged are scarce, and seem increasingly limited to purposes of almost universal acceptance. Here, it cannot be shown that Family First’s promotion of the traditional family unit, though no doubt supported by a section of the community, if achieved would be a public benefit. If it is achieved at a cost to other family models, it could affirmatively be said not to be in the public interest.
[38]At [64].
The Judge also considered that one of Family First’s major purposes — to promote life by reducing access to abortion and opposing legislation enabling assisted death — was a further obstacle to its charitable status. He considered this was a non-charitable purpose that disqualified Family First from achieving charitable status regardless of whether its main purpose could be said to be charitable.[39] The Judge relied on this Court’s decision in Molloy v Commissioner of Inland Revenue,[40] and its subsequent approval in the Supreme Court’s judgment in Greenpeace,[41] to support his conclusion that a purpose of reducing access to abortion and opposing assisted death legislation was not charitable in the required sense.[42] In Molloy, this Court had held the public good in restricting abortion was not so self‑evident as a matter of law that such charitable prerequisite could be achieved.[43] The Judge considered the same analysis applied to other law changes sought by Family First, including repeal of laws relating to anti‑smacking, prostitution reform and censorship.[44]
[39]At [68].
[40]Molloy v Commissioner of Inland Revenue, above n 16.
[41]ReGreenpeace of New Zealand Inc, above n 13, at [73].
[42]High Court judgment, above n 1, at [66].
[43]Molloy v Commissioner of Inland Revenue, above n 16, at 697.
[44]High Court judgment, above n 1, at [68].
Finally, the Judge agreed with the Board’s assessment that, even if there were an educative aspect to Family First’s activities, this was not its only purpose. Its other purposes and activities could not be regarded as ancillary to any educative purpose.[45]
This appeal
Family First’s submissions
[45]At [70]–[73].
Mr McKenzie QC, for Family First, addressing the fourth head of charity point, submits the Judge misinterpreted the Supreme Court’s judgment in Greenpeace. He says there is a presumption of public benefit in each of the first three heads of charity in s 5(1) of the Act unless the contrary is shown. The need to demonstrate public benefit is only required under the fourth head of charity, where the purpose is analogous to existing cases within the spirit and intendment of the Statute of Charitable Uses 1601 (Eng) 43 Eliz I c 4 (the Statute of Elizabeth). It is therefore sufficient for Family First to show it has a purpose of advancing education or a purpose within the fourth head of charity which is also for the public benefit, provided that any other purposes are ancillary to these charitable purposes.
Mr McKenzie submits the Judge erred by looking beyond Family First’s objects as set out in its trust deed and having regard to policies published on its website. Mr McKenzie relies on Ellis J’s observations in Re The Foundation for Anti‑Aging Research that an entity’s activities will only be relevant where its constituent documents do not disclose its purpose or where there is evidence of activities that displace or bely its stated charitable purpose.[46] In any event, he says Family First’s activities directed towards promoting life are closely related to the welfare of the family and should be understood as being merely ancillary to its charitable purpose of promoting the family. Similarly, Mr McKenzie argues Family First’s opposition to anti‑smacking laws and prostitution and its views on censorship are also ancillary to its primary object of promoting the family. He says none of these are primary objects.
[46]Re The Foundation for Anti-Aging Research, above n 27, at [85].
Mr McKenzie contends the Board was required to consider whether the causes or viewpoints promoted by Family First are of public benefit and was in error in declining to embark on this assessment on the basis that Family First seeks to promote a particular viewpoint. He relies particularly on the following passage from Lord Wright’s judgment in National Anti-Vivisection Society v Inland Revenue Commissioners:[47]
Later in his judgment, [the Judge below] said that the intention is to benefit the community: whether if they achieved their object, the community would, in fact, be benefitted is a question on which the court is not required to express an opinion. Whatever else is clear, it is, I think, clear that the question he is proposing involves the balancing of utilities. I cannot understand how the judge could avoid deciding the very question necessary for his decision, viz., whether the society satisfies the fourth head, as being beneficial to the community. That I think is the test he proposes. He questions if the infliction of pain is necessarily cruelty. It may be justifiable he concedes, but that, he thinks, is a question of morals on which men’s minds may differ.
[47]National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31 (HL) at 43 (footnote omitted).
Mr McKenzie refers to the evidence provided to the Board regarding Family First’s current activities. He contends these activities serve to strengthen family life, encourage stability and promote positive values in society, arguing all purposes are of benefit to the community and should be regarded as charitable by analogy to the mental and moral improvement cases. Mr McKenzie summarises these activities as follows:
(a)Advocacy to relevant authorities on strengthening marriage, parenting, child youth and family services, child abuse, family economics, aged care and sex education.
(b)Promoting life, including advocacy against abortion, euthanasia and embryonic cell research.
(c)Promoting community values, including advocacy in the areas of prostitution, pornography and censorship.
(d)Commissioning research papers on euthanasia and the impact of anti‑smacking law changes.
Mr Bassett, junior counsel for Family First, provided supplementary submissions on two topics. First, he addressed the Judge’s concern that the promotion of the traditional family is discriminatory. Secondly, he developed the argument pursued before the Board and in the High Court that one of Family First’s primary objects is the advancement of education, an established charitable purpose.
Mr Bassett submits the Judge was wrong to regard Family First’s promotion of the traditional family unit as discriminatory and contrary to human rights law. He says the Human Rights Act 1993 is not engaged in the present context because Family First is not supplying goods and services, nor is it providing employment. Further, s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA) is not relevant because Family First is neither performing any public function nor discriminating in the relevant sense. He argues there is nothing discriminatory about Family First’s objects as set out in its trust deed. In any case its support of the traditional family is not discriminatory but rather an entirely reasonable point of view which it is entitled to express in a free and democratic society, a right protected by s 14 of NZBORA.
Mr Bassett submits it is self-evident that supporting families, including the traditional family, is a charitable purpose of public benefit. This is reinforced by various international treaties, declarations and other instruments, including those referred to by the Judge, which affirm the fundamental importance accorded to families in society and the responsibility of states to afford them protection and assistance.[48] Mr Bassett contends that Family First’s objects in its trust deed are of benefit to all families, not just the traditional family. For example, he says all families may need to grapple with such issues as family economics, aged care, gambling, excessive screen time, alcohol abuse, sex education and pornography. Mr Bassett contends that Family First’s promotion of debate on smacking, abortion, censorship and prostitution should be characterised as ancillary, rather than a main purpose, and hence not disqualifying in terms of s 5(3) of the Act.
[48]High Court judgment, above n 1, at [53]–[55].
Mr Bassett submits the Judge was wrong to find that Family First’s objects did not include the charitable purpose of advancement of education. He says the trust deed objects include an educational purpose and public benefit can therefore be presumed. Mr Bassett argues that it is not necessary or desirable to “micro-analyse” the research and each viewpoint advocated in assessing the wider public benefit. Any such approach would be inherently subjective, unworkable and unjustifiable. He suggests the better approach is to accept that public benefit flows from the generation of public debate and contribution to public discourse.
In summary, while Mr Bassett acknowledges that the exercise of the right to freedom of expression may not of itself qualify as being for the public benefit, Family First’s objects of supporting families and the advancement of education both qualify as charitable objects and its activities contribute to informed public discourse and are for the wider public benefit.
The Attorney-General’s submissions
Mr Gunn and Ms Lawson, for the Attorney-General support the High Court judgment. Mr Gunn argues that Family First’s contention that its activities benefit all forms of families cannot be sustained on the evidence. He submits that Family First has not established that its principal purpose, advocacy on behalf of the traditional family, is of public benefit or is sufficiently analogous to any purpose previously accepted as charitable.
Mr Gunn supports the Judge’s conclusion that law changes favouring the traditional family, one of Family First’s goals, would be contrary to human rights law which prohibits discrimination on such bases unless shown to be a reasonable limit. Accordingly, he argues the Judge was right to identify this as an obstacle to charitable status.
Mr Gunn also supports the Judge’s conclusion that Family First’s activities do not constitute an educational purpose, not because some of its research is not useful or of educational benefit, but because it is used to promote the views of Family First rather than to educate in the way the law has traditionally viewed as charitable.
CLAANZ’s submissions
Ms Batrouney QC and Ms Davenport QC for CLAANZ submit that, where an organisation’s purpose does not entail a service provision, the public benefit test will depend on the existence of wider benefits to the community. If the political advocacy is in furtherance of some unquestionably beneficial law or policy change, then such wider benefits might be demonstrated directly from the end advocated. However, incidental wider benefits might be demonstrated in light of the means and manner in which the political advocacy is carried out. CLAANZ submits that the possibility of incidental wider benefits arising from the fact of political advocacy itself should be considered, irrespective of the end advocated. CLAANZ relies on the following passage from the majority judgment in the High Court of Australia’s decision in Aid/Watch Inc v Commissioner of Taxation:[49]
Rather, it is the operation of these constitutional processes which contributes to the public welfare. A court administering a charitable trust for that purpose is not called upon to adjudicate the merits of any particular course of legislative or executive action or inaction which is the subject of advocacy or disputation within those processes.
[49]Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42, (2010) 241 CLR 539 at [45] per French CJ, Gummow, Hayne, Crennan and Bell JJ.
While acknowledging that New Zealand’s constitutional arrangements are not the same as those in Australia, CLAANZ submits it is beyond argument that a culture of free political expression is a significant public benefit given New Zealand’s political and legal commitments. CLAANZ points to commentary by notable political philosophers and constitutional scholars who argue powerfully for the recognition of the public benefit of a culture of free political expression in any liberal and democratic system of government.
CLAANZ does not contend there is any positive obligation to preserve freedom of expression through tax subsidies. However, it argues that removal of a subsidy to a previously registered charitable entity could result in an unreasonable limitation on that party’s right to freedom of expression. CLAANZ suggests this would be the case if an organisation would be unable to carry out its functions and engage in its political purpose if the benefit of tax credits available through charitable registration were withdrawn.
Additional evidence
As Mr Gunn acknowledged, the appeal proceeds by way of rehearing.[50] This Court must therefore come to its own view on the merits, taking into account the relevant facts, any new evidence admitted, and the applicable law.[51] At the hearing of this appeal agreement was reached as to certain additional material that was to be provided to us. That agreement was recorded in a minute of the Court of 29 October 2019, a copy of which appears as Appendix One to this judgment.[52] We note that we duly received the requested materials from the Attorney‑General and Family First, including an affidavit from Mr McCoskrie (National Director of Family First) of 13 November 2019, and have relied on them in preparing this judgment. They are, therefore, properly part of the record.
[50]High Court Rules 2016, r 20.18.
[51]Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
[52]Family First New Zealand v Attorney-General CA574/2018, 29 October 2019 (Minute of the Court).
In a second minute, of 17 December 2019, we requested further materials from Family First (as recorded at [3] of that minute), relating to what Family First had suggested were advocacy activities of other charitable trusts which, in distinction to its own position, had been accepted as charitable.[53] We subsequently received extensive submissions from counsel and an extended affidavit from Mr McCoskrie relating to those matters. We also received submissions from the Attorney‑General. Whilst the Attorney‑General did not oppose the introduction of the material, he submitted it did not assist the Court to determine the issues before us. Family First then filed submissions in reply. As matters have transpired, we agree with the Attorney‑General that the materials were of no material assistance to us. While they too are part of the record, we have however not relied upon them.
[53]Family First New Zealand v Attorney-General CA574/2018, 17 December 2019 (Minute of the Court).
We note finally that we received a further, unsolicited, memorandum of counsel, accompanied by another affidavit from Mr McCoskrie, relating to advocacy activities in connection with the cannabis referendum which will take place contemporaneously with this year’s general election. The Attorney-General did oppose the receipt of those documents. Whilst we did not reply formally to those further materials, we record that we have not relied on nor referred to them in this judgment. To take a formal position, as is appropriate for the purposes of clarity, we did not accept those further, June, materials. Accordingly they are not part of the record.
Our analysis
Overview
This appeal raises three broad questions:
(a)Was the High Court wrong to conclude that Family First is not a trust for, presumptively charitable, educational purposes?
(b)Was the High Court wrong to conclude that Family First was not a trust for a fourth head charitable purpose, namely that of promoting families and marriage as of benefit and good to society?
(c)If the answer to either of those questions is yes, does Family First have non-charitable purposes of more than an ancillary nature which, notwithstanding, disqualify it from registration as a charity?
We structure our analysis accordingly. But first, and by way of context, we summarise our understanding of the well-established general principles and their more recent development in New Zealand through the enactment of the Act and cases which have followed, and in particular that of Greenpeace in the Supreme Court.
General principles
The starting point is the Statute of Elizabeth, enacted to correct abuses in the administration of charitable trusts (including the misuse, loss or neglect of charity property), not with any intent to clarify or define the meaning of charitable purpose.[54] The preamble listed miscellaneous examples of charitable objects which reflected a desire to encourage private philanthropy to relieve the burden that would otherwise fall on parish ratepayers.[55] The preamble read:
… 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, ports, 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, and other taxes.
[54]See Gareth Jones History of the Law of Charity (Cambridge University Press, Cambridge, 1969) at ch 3.
[55]Chichester Diocesan Fund and Board of Finance (Inc) v Simpson [1944] AC 341 (HL) at 354 per Lord Wright.
These examples were not intended to comprise an exhaustive or fixed list.[56] Over the 400 years since the Statute of Elizabeth, purposes regarded as charitable have continued to develop as the courts have considered whether particular purposes fall within the “spirit and intendment” of the preamble by analogy with existing cases. This incremental common law process of reasoning has allowed the law of charity to respond to changing social values and needs. In this way, new charitable objects have been recognised by the courts over time, while others have become obsolete and fallen away.[57]
[56]Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue [1999] 1 SCR 10 at [35].
[57]National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47, at 69–70 per Lord Simonds.
In 1891 Lord Macnaghten identified four classes of charitable purposes in his seminal judgment in Commissioners for Special Purposes of the Income Tax v Pemsel:[58]
“Charity” in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.
[58]Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL) at 583.
These broad classifications have endured and form the basis of the four categories now found in s 5 of the Act — “the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community”.
In Barby v Perpetual Trustee Co (Ltd), Dixon J noted the wide breadth of objects that could conceivably come within the fourth category:[59]
In this now familiar classification of charitable gifts, the fourth class, as has often been pointed out, does not attempt to define a charitable object. It is no more than a final class into which various objects fall that are not comprised in the first three classes, but are nevertheless charitable. It has been found impossible to give an exhaustive definition of what amounts to a charitable purpose, but the authorities indicate the attributes that are to be looked for. The gift must proceed from altruistic motives or from benevolent or philanthropic motives. It must be directed to purposes that are for the benefit of the community or a considerable section or class of the community. The purposes must tend to the improvement of society from some point of view which may reasonably be adopted by the donor. The manner in which this tendency may be manifested is not defined by any closed category. It is capable of great, if not infinite, variation. It may be by the relief of misfortune; by raising moral standards or outlook ; by arousing intellectual or aesthetic interests ; by general or special education ; by promoting religion; or by aiming at some betterment of the community. The purposes must be lawful and must be consonant with the received notions of morality and propriety.
[59]Barby v Perpetual Trustee Co (Ltd) (1937) 58 CLR 316 at 324.
The word “charitable” in this context means charitable in the legal sense, not according to its ordinary meaning. To qualify under the fourth head requires both public benefit and a charitable object in the same sense as the other purposes recited in the preamble to the Statute of Elizabeth.[60] There are two aspects to the public benefit test. The purposes must be such as to confer a benefit on the public or a section of the public (the benefit component) and the class of persons eligible to benefit must constitute the public or a sufficient section of the public (the public component).[61] In relation to cases under the fourth head, objects of public benefit are not automatically presumed to be charitable. The benefit must be charitable in the sense of coming within the spirit and intendment of the preamble, to be determined by analogy to the decided cases.[62] It is accepted that the common law should develop cautiously, given the significant tax implications of materially widening the qualifying class of cases.[63] While public benefit may be assumed (unless the contrary is proven) where the object in question falls within any of the first three heads of charity, this is not so for the fourth category. Unless the public benefit is self‑evident, it must be proved by evidence.[64]
[60]Re Greenpeace of New Zealand Inc, above n 13, at [29].
[61]Travis Trust v Charities Commission (2009) 24 NZTC 23,273 (HC) at [54]; and Plumbers, Gasfitters and Drainlayers Board v Charities Registration Board [2013] NZHC 1986, [2014] 2 NZLR 489 at [20].
[62]National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47, at 41–42 per Lord Wright.
[63]D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342 (HC) at 348. See also Re Greenpeace of New Zealand Inc, above n 13, at [30].
[64]National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47, at 42 per Lord Wright; and D V Bryant Trust Board v Hamilton City Council, above n 63, at 350.
As the Supreme Court acknowledged in Greenpeace, plainly Parliament did not intend to displace the common law meaning of “charitable purpose” when enacting the Act.[65] Section 5 states “charitable purpose includes every charitable purpose” (emphasis added). The fourth category — “any other matter beneficial to the community” — reinforces Parliament’s intention to leave the question of what qualifies as a charitable purpose to continue to be worked out over time employing the common law method and adapting to changing social needs and circumstances. The select committee which considered the Charities Bill endorsed the Pemsel classifications in the definition of charitable purpose, observing that “amending this definition would be interpreted by the Courts as an attempt to widen or narrow the scope of charitable purposes, or change the law in this area, which was not the intent of the bill”.[66]
[65]Re Greenpeace of New Zealand Inc, above n 13, at [16].
[66]Charities Bill 2004 (108–2) (select committee report) at 3.
The courts continue the process of recognising analogously charitable purposes, especially under the fourth, public benefit, head.[67]
[67]For example in Re Tennant [1996] 2 NZLR 633 (HC) the High Court recognised as charitable the provision — pursuant to a 1920s trust — of a creamery to assist a small rural community become economically viable.
Since the passage of the Act, the following purposes have been recognised as being charitable:
(a)Providing mortgage lending on terms according with financial principles derived from the Bible (under the third, religious, head);[68]
(b)Funding and disseminating research into cryonics (under the second, educational, head);[69]
(c)Establishing and monitoring competency standards applicable to plumbers, gasfitters and similar trades (under the fourth, public benefit, head);[70] and
(d)Campaigning for the protection of the environment, including avoiding climate change, over-fishing and polluted waterways (under the second and fourth heads).[71]
[68]Liberty Trust v Charities Commission [2011] 3 NZLR 68 (HC).
[69]Re The Foundation for Anti-Aging Research, above n 27.
[70]Plumbers, Gasfitters and Drainlayers Board v Charities Registration Board, above n 61.
[71]Greenpeace of New Zealand v Charities Registration Board [2020] NZHC 1999.
Section 3(1) of the Charities Act 2011 (UK) now provides the following list of charitable purposes:
(a) the prevention or relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;
(d) the advancement of health or the saving of lives;
(e) the advancement of citizenship or community development;
(f) the advancement of the arts, culture, heritage or science;
(g) the advancement of amateur sport;(h)the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity;
(i)the advancement of environmental protection or improvement;
(j)the relief of those in need because of youth, age, ill-health, disability, financial hardship or other disadvantage;
(k) the advancement of animal welfare;
(l)the promotion of the efficiency of the armed forces of the Crown or of the efficiency of the police, fire and rescue services or ambulance services;
(m) any other purposes—
(i)that are not within paragraphs (a) to (l) but are recognised as charitable purposes by virtue of section 5 (recreational and similar trusts, etc.) or under the old law,
(ii)that may reasonably be regarded as analogous to, or within the spirit of, any purposes falling within any of paragraphs (a) to (l) or sub-paragraph (i), or
(iii)that may reasonably be regarded as analogous to, or within the spirit of, any purposes which have been recognised, under the law relating to charities in England and Wales, as falling within sub-paragraph (ii) or this sub-paragraph.
It would appear to be accepted that that codification generally reflected the position the common law had reached by that point in time in the United Kingdom. That said, the effect of the wording of s 3(1)(m) remains to be seen.[72]
[72]See, for example, the commentary in William Henderson and Jonathan Fowles Tudor on Charities (10th ed, Sweet and Maxwell, London, 2015) at [1-008].
In Greenpeace, the Supreme Court commented on the development over time of the concept of a charity in the following terms:[73]
[71] Just as promotion of the abolition of slavery has been regarded as charitable, today advocacy for such ends as human rights or protection of the environment and promotion of amenities that make communities pleasant may have come to be regarded as charitable purposes in themselves, depending on the nature of the advocacy, even if not ancillary to more tangible charity. That result was looked to as one that might well come about in relation to protection of the environment by Somers J in Molloy. In the present case the Board has accepted that Greenpeace’s object to “promote the protection and preservation of nature and the environment” is charitable. Protection of the environment may require broad-based support and effort, including through the participatory processes set up by legislation, to enable the public interest to be assessed. In the same way, the promotion of human rights (a purpose of the New Zealand Bill of Rights Act 1990, as its long title indicates) may depend on similar broad-based support so that advocacy, including through participation in political and legal processes, may well be charitable.
[73]Re Greenpeace of New Zealand Inc, above n 13 (footnotes omitted).
As we discuss later, and as recognised by Simon France J in the High Court, the Universal Declaration of Human Rights, and other similar instruments, affirm a right to family life.[74] That provides considerable support for the proposition that Family First’s support of, education about, and advocacy for, the family and its related institution of marriage may, other things being equal, be charitable.
Presumptively charitable under the second head of the advancement of education?
[74]Universal Declaration of Human Rights GA Res 217A (1948), art 16.
Because Family First contends its objects fall within the second head of charity, advancement of education by the promotion and dissemination of research, we now describe the applicable principles for this category.
There is no doubt the courts have come to accept advancement of education as comprising a broad category extending beyond formal teaching to include research. The weight of modern authority allows for the commission and dissemination of bona fide research as a form of educational charity. That is, direct instruction, courses of learning or similarly tangible educational good works are not required.
The position has not always been so. For example, Mr Gunn refers to Re Shaw for the proposition that if the purpose is merely to increase the stock of knowledge that is not itself a charitable purpose unless combined with teaching or education.[75] In Shaw, the testator left the residue of his estate on trust to ascertain how much time and money could be saved by adding 14 letters to the English alphabet. He saw research being undertaken as to the benefits of additional characters and provided for advertisements explaining the expanded alphabet to be published in newspapers throughout the anglophone world. In finding this purpose was not charitable under the second head, Harman J remarked:[76]
The research and propaganda enjoined by the testator seem to me merely to tend to the increase of public knowledge in a certain respect, namely, the saving of time and money by the use of the proposed alphabet. There is no element of teaching or education combined with this, nor does the propaganda element in the trusts tend to more than to persuade the public that the adoption of the new script would be “a good thing,” and that, in my view, is not education.
[75]Re Shaw [1957] 1 WLR 729 (Ch).
[76]At 738.
This rather strict or narrow approach to research as a form of charity can be traced to 19th-century cases such as Whicker v Hume which distinguished “‘learning’ in the sense of imparting knowledge by instruction or teaching”, which was educational and charitable,[77] from “the promotion of abstract learning”, which was not.[78] Thus, the commission and limited dissemination of research, standing alone, generally amounted to “merely the increase of knowledge” and fell short of what was required for charity.[79]
[77]Whicker v Hume (1858) 7 HLC 124 at 154, 11 ER 50 (HL) at 62.
[78]Re Macduff [1896] 2 Ch 451 (CA) at 473.
[79]Re Shaw, above n 75, at 737.
A similarly confined definition of “education” was adopted by Iacobucci J in Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue, in comments subsequently endorsed by Ronald Young J in Re Draco Foundation:[80]
To my mind, the threshold criterion for an educational activity must be some legitimate, targeted attempt at educating others, whether through formal or informal instruction, training, plans of self-study, or otherwise. Simply providing an opportunity for people to educate themselves, such as by making available materials with which this might be accomplished but need not be, is not enough. Neither is “educating” people about a particular point of view in a manner that might more aptly be described as persuasion or indoctrination. On the other hand, formal or traditional classroom instruction should not be a prerequisite, either. The point to be emphasized is that, in appropriate circumstances, an informal workshop or seminar on a certain practical topic or skill can be just as informative and educational as a course of classroom instruction in a traditional academic subject. The law ought to accommodate any legitimate form of education.
[80]Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue, above n 56, at [171]; partially quoted in Re Draco Foundation (NZ) Charitable Trust (2011) 25 NZTC 20-032 (HC) at [75].
On the other hand, Harman J’s comments in ReShaw were subsequently qualified by Wilberforce J in a widely‑cited passage of Re Hopkins’ Will Trusts:[81]
[Whicker v Hume] certainly seems to place some limits upon the extent to which a gift for research may be regarded as charitable. … I should be unwilling to treat [Whicker] as meaning that the promotion of academic research is not a charitable purpose unless the researcher were engaged in teaching or education in the conventional meaning
…
[81]Re Hopkins’ Will Trusts [1965] Ch 669 (Ch) at 680.
Wilberforce J was considering whether a gift to the Francis Bacon Society Inc to be earmarked and applied towards finding the supposed “Bacon–Shakespeare manuscripts” was charitable. The Judge found the bequest was within the law’s conception of charitable purpose either as being for the advancement of education or as being for other purposes beneficial to the community within the classification in Pemsel — it was a gift for improving the country’s literary heritage.[82] The observations of Wilberforce J describing the breadth of this category of advancement of education are instructive:[83]
… the word “education” as used by Harman J in In Re Shaw 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 …
[82]At 682.
[83]At 680 (footnotes omitted).
The Law and Practice Relating to Charities refers to the oral judgment of Slade J in Re Besterman’s Will Trusts for the following useful summary:[84]
A trust for research will ordinarily qualify as a charitable trust if, but only if
(a)the subject-matter of the proposed research is a useful subject of study; and
(b)it is contemplated that knowledge acquired as a result of the research will be disseminated to others; and
(c)the trust is for the benefit of the public, or a sufficiently important section of the public.
[84]Re Besterman’s Will Trusts, noted “Bequest of £300,000 to library ‘a valid trust’” The Times (London, 22 January 1980) at 5; quoted in Hubert Picarda The Law and Practice Relating to Charities (4th ed, Bloomsbury Professional, Haywards Heath, 2010) at 66–67. See also McGovern v Attorney-General [1982] Ch 321 (Ch) at 352–353
The above approach to advancement of education was applied in the High Court by Hammond J in Re Collier, although an additional requirement of the work meeting a minimum standard was included.[85] A succinct and helpful description of this second head of charity which we endorse is contained in Law of Charity as follows:[86]
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.
[85]Re Collier, above n 34, at 91–92;. referring to Re Elmore [1968] VR 390 (VSC) and Re Pinion [1965] 1 Ch 85 (Ch and CA).
[86]Juliet Chevalier-Watts Law of Charity (2nd ed, Thomson Reuters, Wellington, 2020) at 141 (footnotes omitted).
It follows that the advancement of education head should be interpreted “very widely”.[87] The activities or purposes included will extend to those providing for “the improvement of a useful branch of human knowledge and its public dissemination”.[88]
[87]Re South Place Ethical Society [1980] 1 WLR 1565 (Ch) at 1576.
[88]Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73 (CA) at 102.
This Court in Latimer v Commissioner of Inland Revenue accepted that research may “fulfil an educational role”.[89] The research in question was historical in nature and had an assistance purpose in providing the Waitangi Tribunal with additional material which would help it to produce more informed recommendations.[90] Accordingly we accept that useful and publicly disseminated research may constitute a possible form of educational charity, notwithstanding the absence of tangible good works in the nature of teaching or instruction.
[89]Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA) at [41].
[90]At [40].
Finally, we record the settled law that under the first three heads of charity, public benefit is presumed unless the contrary is proven.[91]
Family First’s objects
[91]Re Greenpeace of New Zealand Inc, above n 13, at [27]; and National Anti‑Vivisection Society v Inland Revenue Commissioners, above n 47, at 42.
Whether or not an organisation is entitled to charitable status will generally depend on an examination of its purposes expressed in its constitutive document. The objects should be construed as a whole in the context of the relevant background.[92] Because the organisation must be established and maintained exclusively for charitable purposes, this requires identification of all the main objects and any that are merely ancillary to the main charitable objects. It is important to distinguish between the purposes or objects and the activities or means by which they are sought to be achieved or advanced. The purposes of an organisation may in some circumstances be inferred from its activities. This point was discussed by Ellis J in Re The Foundation for Anti-Aging Research, where she observed “an entity’s activities were regarded as relevant only to the extent that the entity’s constituent documents were unclear as to its purpose or where there was evidence of activities by an entity that displaced or belied its stated charitable purpose”.[93]
[92]GE Dal Pont Law of Charity (2nd ed, LexisNexis Butterworths, Chatswood, NSW, 2017) at [13.17]–[13.18].
[93]Re The Foundation for Anti-Aging Research, above n 27, at [85]; referring to Institution of Professional Engineers New Zealand Inc v Commissioner of Inland Revenue [1992] 1 NZLR 570 (HC) at 572.
Mr McKenzie was critical of the Judge for having placed too much reliance on Family First’s activities to determine its purposes, to the virtual exclusion of the objects as expressed in the trust deed. We accept it is important to distinguish between activities and purposes. Charitable status depends principally on purposes, not activities. In principle, this can be seen as accepting that the “bounds” of a trust are determined by the settlor. If the trustees of a charitable trust act outside its charitable purposes, they may in breach of their duties. But that should not necessarily involve the settlor’s charitable purpose and gift failing.
Traditionally, this meant the courts were reluctant to determine charitable status other than by reference to a trust’s stated purposes. The Law and Practice Relating to Charities comments on this issue in the following way:[94]
A question which arises with increased frequency is whether the court and the Commissioners are entitled to interpret declared purposes by reference to proposed or supposed activities of the organisation claiming charitable status.
The orthodox view, reflecting the extrinsic evidence rule, is that, as a rule, if stated purposes are clearly charitable that is the end of the matter: in such a case an activities test is not in order. That was the view enunciated by the Charity Commissioners in 1966, who added that it would be otherwise if the governing documents are obscurely drafted. But in recent years there has been a shift in their approach and now when considering whether the purposes of the organisation are charitable in law they consider themselves as necessarily involved in looking at both its objects and its activities.
[94]Picarda, above n 84, at 27 (footnotes omitted).
The position is similar in New Zealand. As Elias CJ (for the majority) noted in Greenpeace, the “purposes of an entity may be expressed in its statement of objects or may be inferred from the activities it undertakes, as s 18(3) of the Charities Act now makes clear”.[95] We begin by referring to the objects in Family First’s trust deed, set out in full at [9] above.
[95]Re Greenpeace of New Zealand Inc, above n 13, at [14] (footnote omitted).
First, there is a common thread of advancement of education and research running through the first four objects — to “promote and advance research and policy” (object A), to “educate the public” (object B), to “participate in social analysis and debate” and to “network with other like-minded groups and academics” (object C), and to “produce and publish relevant and stimulating material” (object D). While object B is expressed as being to “educate”, the target group (“the public”) and the topic (“the institutional, legal and moral framework that makes a just and democratic society possible”) illustrate the breadth of the intended dissemination of any research output. This is reinforced in object E which illustrates the purpose of giving families a voice on “issues relating to families”. The scope of the dissemination of research and discussion papers on such matters may also extend to doing so through the media.
Second, the objects have a central theme which is expressed in the first object — of giving support to “marriage and family” — the underlying premise of which is that marriage and family are the foundation of a strong and enduring society. Four of the six objects (objects A, C, D and E) refer specifically to “the family”, “family” or “families” and specify the various means by which Family First aims to support families. The only other specific object, of potential relevance to the second head of charity (albeit wider than just marriage and families), is “[t]o educate the public on the institutional, legal and moral framework that makes a just and democratic society possible” (object B). The final object (object F) is a general provision authorising Family First to carry out such other charitable purposes within New Zealand as it may determine.
In summary, objects A to D, and particularly A and B, on their face promote the advancement of education: that is, education by facilitating research on, and public understanding of, the importance of the roles of marriage and the family in our society. Properly construed the objects seek to improve public awareness of the notion of family and enhance the quality of societal and public discourse on that issue. The fact there may be a political element to the promulgation and public dissemination of the research cannot be said to negative its utility. On the contrary, as Paul Rishworth QC has observed: “Our political systems depend upon our deliberating as a community. Our understanding of the world comes by seeking information and transmitting it to others.”[96]
[96]Paul Rishworth “Freedom of thought, conscience, expression and belief” in Human Rights Law — New Frontiers (NZLS CLE Ltd, May 2019) 115 at 115.
Lord Simonds said in National Anti-Vivisection Society v Inland Revenue Commissioners if a purpose appears broadly to fall within the familiar categories of charity, “the court will assume it to be for the benefit of the community and, therefore, charitable, unless the contrary is shown”.[97] Importantly for present purposes he added: “the court will not be astute in such a case to defeat on doubtful evidence the avowed benevolent intention of a donor”.[98] Here of course the intent is that of the settlors of the Family First trust deed.
[97]National Anti-Vivisection Society v Inland Revenue Commissioners, above n 4747, at 65.
[98]At 65.
Our review of the second deregistration of the Board, summarised at [30]–[35] above, suggests very little attention was paid to the meaning and interpretation of the Family First objects as expressed in the trust deed. Rather than focus on the precise nature and scope of the objects (and start its analysis by interpreting the trust deed), the decision spends considerable time assessing the detail of a range of Family First reports placed before the Board.[99] The High Court judgment likewise, perhaps because that was the way the appeal was run by counsel, touched only briefly on the advancement of education category.[100] Simon France J stated he agreed with the conclusion of the Board, “although not with all of its reasoning”.[101]
[99]Second deregistration decision, above n 2727, at 45–51.
[100]High Court judgment, above n 1, at [69]–[73].
[101]At [72]. The Judge considered “the Board’s analysis delved too much into an assessment of the merits of the publications”.
In the course of his analysis Simon France J said this:
[57] Leaving to one side any attempt to limit the definition of family, I consider a purpose of promoting the benefits of a stable family unit for society would likely be charitable. One of the research pieces commissioned by Family First was a study by NZIER into the fiscal cost to society of family breakdown and decreasing marriage rates. It is independent, peer reviewed research that makes a case to say the cost may be upwards of $1 billion a year. The report notes that its conclusions are necessarily based on a number of assumptions but it is an item of evidence supporting a public benefit claim. Many working in areas such as the criminal justice sector would also no doubt attest to the obvious societal cost when children and young people are not raised in a supportive environment. Indeed, the statements cited from the various international documents appear to come from an unarticulated recognition of that cost to society when the family unit breaks down. It follows therefore that if Family First’s purposes were solely to promote the role of the family, there would be considerable strength to its claim for charitable status.
(Footnote omitted.)
That conclusion is reflected in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance, as found in many instruments of international law, for example, in art 16(3) of the Universal Declaration of Human Rights.[102]
[102]Universal Declaration of Human Rights, above n 74.
We develop that analysis more fully in considering whether Family First is also a fourth head, public benefit, charity. But, for the purpose of considering whether Family First is a second head, educational purposes, charity, we are satisfied the answer to the fundamental question — whether the charitable purposes of promoting and disseminating research about the family are “for a public good”— is yes.
Implementation and advancement of the objects
Having analysed and construed the objects, we now examine how Family First has gone about implementing the objects. We consider it is important to contextualise the activities undertaken by Family First, bearing in mind the permitted assumption of benefit to the public. The “Principles on Family” (quoted in full at [10] above) were developed and released in around July 2006. The principles highlighted the meaning and significance of the family. The “Principles on Marriage” were released the same month.
The development of the “Principles on Family” was accompanied by a press release referring to their source, namely the World Congress of Families, and emphasising that such principles were intended to “bring us back to the core values of the family”.[103]
[103]Family First New Zealand “Family First releases ‘Principles of Family’” (press release, July 2006)
In terms of such research, we have considered three questions:
(a)How does Family First commission reports?
(b)What is the character and content of Family First’s reports?
(c)How does Family First distribute and promote its reports?
The analysis which follows is drawn from the Family First materials contained in the case on appeal and in part from the affidavit evidence provided by Mr McCoskrie.
With respect to the commissioning of reports or research papers, the process generally involved Mr McCoskrie approaching the authors to inquire whether they might produce a “New Zealand version” of a report written by a similar “family values” organisation based overseas. In one instance Mr McCoskrie presented the authors with an open‑ended thesis inviting them to write a report, and in another the author approached Mr McCoskrie with an unsolicited proposal.
The background of the authors varied considerably. Some, such as Professor Rex Ahdar and NZIER, were employed academics or researchers working in a professional capacity. Another group comprised qualified professionals who work as self-employed researchers. A third group could be classed as articulate laypersons without any formal qualification relevant to the reports they authored. Mr McCoskrie deposed that all authors were identified based on the fact “they have already written similar reports internationally or have demonstrated expertise in the field”, though some of whom were approached by Mr McCoskrie because he was on friendly terms with them.
Mr McCoskrie deposed Family First and the author would first seek to establish their mutual interest and then the paper would generally be formalised with a telephone or email confirmation. Family First’s practice appears to have been to obtain a short proposal or research plan from the authors, quoting a price for the report or paper and detailing the proposed research process, chapters and structure, and the main hypotheses to be tested.
Family First gave authors significant latitude to complete the research as they saw fit. Mr McCoskrie offered guidance to some authors in terms of the broad themes and hypotheses they were to focus on and, as already noted, in some cases Family First sought to “replicate” overseas research in the New Zealand context, implying similar oversight. Notwithstanding, the emails exhibited support the proposition that editorial control for published work remained in the hands of the authors. Unsurprisingly, some exchanges acknowledge the wider political context and social debate to which each report contributes.
The manner and means in which Family First engages on specific issues and in overtly political processes (such as elections) was summarised by Family First itself in what it described as its “policy priorities”. As published on its website, and referred to by the Board in its second deregistration decision, those matters were:[148]
a. “Promoting marriage and families” (which includes advocacy on a wide range of issues in relation to marriage, divorce, child abuse, the availability of alcohol, tobacco and gambling, taxation of families, aged care and sex education).
b. “Promoting life” (which includes advocacy against abortion, to maintain the status quo on euthanasia and against embryonic cell research).
c. “Promoting community values and standards” (which includes advocacy to change prostitution laws, [reduce] the availability of pornography and for stricter broadcasting standards and censorship).
[148]Second deregistration decision, above n 27, at [25]; referring to Family First New Zealand “Family Policy Priorities” <>
An earlier example of a similar publication was the following “Policy Check List” published at the time of the 2008 general election:[149]
[149]Family First “It’s Not Just About Tax Cuts — Family First Releases Policy Check List” (press release, 13 October 2008).
Family First NZ says the upcoming election is not just about taxation, and have released family policies which they are encouraging voters and families to check against the policies of each political party.
“Many commentators seem to think that this election is all about tax cuts and the economy,” says Bob McCoskrie, National Director of Family First NZ. “Economical issues are important, but far more important than what we get is the type of society and values we are building (or destroying) for our future generations — our respect for life — the strengthening of families — the safety and wellbeing of our children — and laws that protect our families.”
“It is interesting to observe media coverage of politician ‘walkabouts’ where voters seemed more interested in talking about the anti-smacking legislation and education than they were tax cuts. Families deserve laws that strengthen and protect them — not ones that redefine and undermine them according to politically correct ideology.”
The policy check list can be viewed on Family First’s website … and covers three broad areas; promoting marriage and families, promoting life, and promoting community values and standards.
“Family First is not a political party. Our role is to be a voice for families in the public domain, and to research and advocate for family and marriage issues,” says Mr McCoskrie.
Some of the policies that Family First are promoting for all political parties to adopt include:
-amending the welfare and tax systems to eliminate disincentives to marriage and marriage penalties
-recognise that parents have primary responsibility for nurture, raising and educating of children, and governments should respect and support the exercise of parental responsibilities
-replace the offices of Children’s Commissioner and Families Commission with a Ministry of Families
-Establish an independent CYF complaints authority so parents have an avenue to appeal the intervention of CYF and to safeguard against abuse of state power
-Develop and enforce higher standards for TV, film, radio and advertising content including levels of violence, sexual content and objectionable language.
and others in the areas of child abuse, euthanasia, family economics, aged care, abortion, street prostitution, parental notification for teen pregnancy, and pornography.
“Strong families make a strong nation. We are encouraging voters to look beyond just the economical issues to the type of society and values we want to build for our children and future generations,” says Mr McCoskrie.
We do not consider that type of activity, in the context of Family First’s overall charitable educational and advocacy purposes, to be non-charitable activity of a more than ancillary nature. Rather, taken together, those public statements reflect the broad range of Family First’s activities, including advancement of their charitable objects, such as the promulgation of ideas and issues the subject of commissioned research papers.
The more difficult issue is the extent to which Family First has advocated over time for very specific approaches on issues of the day. As already noted above at [12], it seeks to discourage divorce, opposed the liberalisation of laws relating to prostitution and the availability of abortion, sought an exemption for “light parental smacking” from the anti-smacking legislation and is currently seeking to preserve the status quo in the forthcoming referenda on cannabis and euthanasia.
We accept that those specific issues are very clear examples where reasonable and informed views may differ, so that no one position or outcome advocated could be said to be self‑evidently in the public interest in terms of the approach taken prior to the Supreme Court’s Greenpeace decision. Nor are such issues easily assessable on some evidential basis.[150] By the same token, neither could support for or advocacy of opposing points of view on the same issues be advocacy of self-evident public benefits.
[150] The authors of Tudor on Charities, above n 7272, at [1-074] suggest the courts in England engage in some form of balancing exercise of perceived benefits, and refer to cases evidencing that approach, including National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47. It was not suggested to us that either the Board, or the courts in New Zealand, take a similar approach.
But Greenpeace has signalled a change in that approach. As Mallon J observed of the Board’s understanding of the post-Greenpeace position:[151]
The Board took [the Supreme Court’s qualification that the charitable status of cause, including political, advocacy would depend on the nature of that advocacy] as meaning that if the advocacy involved advancing particular views, on which there were competing views and interests, then Greenpeace NZ needed to demonstrate that its views were of public benefit and it could not do so. I agree with Greenpeace NZ that this approach is incorrect. Protecting the environment will often come at the cost of competing interests, but advocating for its protection, in opposition to competing interests, is no less in the public benefit because of that. The Supreme Court cannot have meant that the nature of the advocacy will be disqualifying if an organisation advocates for environmental protection of a kind for which there will be opposition.
[151]Greenpeace of New Zealand v Charities Registration Board, above n 71, at [85].
In other words, the approach following Greenpeace would appear to recognise the courts’ role in contemporary society — as regards fourth head charities — as being one of recognising goals and objectives of general public benefit. Having done so, the Court will not seek to reach a concluded view on self-evident public benefit on specific issues where views may differ. Nor will advocacy in support of one or other of the competing viewpoints necessarily disqualify an organisation from charitable status. The relevant question will be, as Mallon J grapples with in her decision, the extent to which the penumbra of the relevant public, general, good. Implicitly, the less direct connection there is between the specific and the general, the more likely will be a negative answer to that question.
That development can be seen as analogous to that which has occurred as regards the third head, the advancement of religion. That is, belief in religion is seen as a good thing: and so the courts do not distinguish between particular religions, or consider advocacy of specific beliefs and practices which one group believes in but not another as a bar to charitable status.
So, advocacy for a specific position on a matter, such as on the very difficult question of euthanasia, would not preclude an assessment as to charitable status.
In the case of Family First, whilst at any one time advocacy of a specific outcome may be of particular significance, the issues of that nature which Family First focuses on would appear to change and develop in response to particular issues of the day. By contrast, Family First’s educational and advocacy charitable purposes as regards the institutions of family and marriage have been generally constant over time, evidencing that its advocacy on specific issues can properly be seen as ancillary to those general charitable purposes discussed above: (a) education and research purposes or (b) fourth head charitable advancement of marriage and family values.
Having said that, there are issues on which Family First advocates for particular positions which, whilst consistent with the values which underpin its support of the institutions of marriage and family, are ones that may fall outside the penumbra of the advocacy of the public goods of family and marriage as currently recognised. Issues such as divorce, alternative forms of marriage and, as the Supreme Court recognised when acknowledging the apparent correctness of the decision in Molloy v Commissioner of Inland Revenue, abortion, may fall within that category.[152] Family First will need to bear that in mind as it determines its priorities and activities for the future.
Human rights law considerations
[152]Molloy v Commissioner of Inland Revenue, above n 16.
In the High Court Simon France J was attracted to an argument against public benefit based on the discriminating effect of the activities of Family First. The Judge said this:[153]
In relation to marriage, Family First’s model, to the extent it involves law change favouring the traditional family unit, would on its face run counter to human rights law which prohibits discrimination on such bases. Unless able to be shown to be a reasonable limit, the position advocated for would be unlawful, an obstacle to charitable status.
[153]High Court judgment, above n 1, at [64] (footnotes omitted).
Mr Bassett submits the Judge was wrong to apply the concept of discrimination in the area of charities law. He argues that the Human Rights Act is not engaged as Family First is not supplying goods or services, nor providing employment. He suggests the Act does not apply to the activities of Family First relevant to the question of whether the second deregistration decision ought to have been made by the Board. The Human Rights Act would, of course, apply to prevent Family First from discriminating in relation to its internal employment policies, for example by only employing married women or heterosexual persons.[154]
[154]Human Rights Act 1993, s 22.
In response, Mr Gunn submits that this misunderstood Simon France J’s point. He did not suggest that Family First was engaged in unlawful discrimination. Rather, the point was that the law changes it promoted would favour a particular marital status and would, on their face, conflict with the prohibition of discrimination in human rights law.
It is well established that an illegal purpose is disqualifying, and illegal activities may in turn indicate an illegal purpose.[155] However, our assessment is that, whether or not the law changes advocated by Family First are in tension with human rights law, its purpose in advancing them cannot be considered to be illegal in the relevant sense. Proposing and enacting legislative amendments is not unlawful, even if what is proposed conflicts with the Human Rights Act or NZBORA, and we do not consider illegality in this context extends to the more abstract judgment whether the desired end conflicts with NZBORA. Nor is there any suggestion that Family First engages in unlawful activities, such as the types of non‑violent direct action at issue in Greenpeace. We therefore do not consider Family First’s positions create an obstacle to their charitable status in the manner the Judge suggested.
CLAANZ’s submissions
[155]Re Greenpeace of New Zealand Inc, above n 13, at [111].
As recorded above at [56]–[58], CLAANZ suggests that removal of a tax subsidy to a previously registered charitable entity could be an unreasonable limitation on its right to freedom of expression, particularly if this meant it could not continue to engage in its political purposes. We accept, of course, that removal of registration will have an effect on Family First financially. However, CLAANZ did not provide any evidence to suggest that its activities could not continue without the tax benefits it currently enjoys. Moreover, Family First did not advance this point as one of its 20 grounds of appeal. The issue was raised neither before the Board nor in the High Court. In these circumstances, we do not consider it is necessary to address this issue further.
Result
The appeal is allowed.
The decision of the Charities Registration Board dated 21 August 2017 to remove Family First New Zealand from the Charities Register is set aside.
There is a declaration that Family First New Zealand qualifies for registration under the Act.
GILBERT J
The question whether Family First qualifies for charitable status has been subjected to intense scrutiny ever since the Board carried out its initial investigation leading to the first deregistration decision in April 2013. That was over seven years ago. This is now the fifth decision dealing with the issue.
The majority’s judgment stands alone in concluding that Family First is an organisation primarily established and maintained for the advancement of education.[156] Having found that presumptively charitable purpose, the majority also find a second purpose, namely “to promote and support (that is, to advocate for) self‑evident public goods, the institutions of the family and marriage”.[157] This purpose is said to qualify as a public benefit in the charitable sense under the fourth head of charity.[158] Thus, Family First qualifies for registration under the Act.[159]
[156]Above at [74]–[122] and particularly [90]–[92].
[157]At [91] and [123].
[158]At [154].
[159]At [184].
The majority then address areas of potential vulnerability in Family First’s claim to charitable status.[160] In particular, “whether, to the extent Family First has advocated for positions on specific issues where views differ, Family First has a non‑charitable purpose that is more than ancillary”.[161] The majority conclude that Family First’s advocacy on these specific issues can properly be seen as ancillary to its charitable purposes of “education and research” or the “advancement of marriage and family values”.[162]
[160]At [156]–[176].
[161]At [159].
[162]At [175].
Despite finding Family First’s purposes are charitable and its advocacy on specific issues is no more than ancillary to those charitable purposes, the majority considered referring the question of registration back to the Board. This was because neither the Board nor Simon France J had considered “in any detail the possibility that Family First’s activities which were properly to be characterised as non-charitable were no more than ancillary to the charitable purposes we have recognised”.[163] Here, the majority refer to “issues on which Family First advocates for particular positions which, whilst consistent with the values which underpin its support of the institutions of marriage and family, are ones that may fall outside the penumbra of the advocacy of the public goods of family and marriage as currently recognised”.[164] I strongly support the majority’s decision not to remit the matter back to the Board for further consideration of this topic.
[163]At [156].
[164]At [176].
I am otherwise unable to subscribe to the majority judgment. I would dismiss the appeal. I consider Simon France J was correct to dismiss Family First’s appeal from the second deregistration decision. I also agree with his reasons.
In consequence of the various hearings and the appropriately liberal approach adopted to the receipt of further evidence and submissions, this Court has received a comprehensive suite of information about Family First’s purposes and its activities over the last 10 years, far more information than would normally be available on a charity registration decision. The comprehensive nature of the evidence leaves little room for doubt about Family First’s purposes or its activities.
As its original name suggests — “Family First Lobby” — Family First is essentially a lobby group which promotes its particular viewpoint on family and marriage. It opposes law reform on issues such as abortion, euthanasia, divorce, same‑sex marriage, prostitution, pornography, censorship and child smacking. The promotion of these views is in furtherance of its objects, for example, “to promote … policy” (object A), “to participate in social analysis and debate” (object C), “to produce and publish relevant and stimulating materials in newspapers, magazines, and other media” (object D) and “to be a voice for the family in the media speaking up about issues relating to families” (object E).
Although object B uses the word “educate” — to “educate the public in their understanding of the institutional, legal and moral framework that makes a just and democratic society possible” — this also involves Family First promoting its particular viewpoints, including that the “traditional family” is the fundamental social unit (the union of a man and a woman through marriage and their biological children). Family First holds to the view that the “natural family cannot change into some new shape” or “be re-defined by social engineering”. Family First describes other family forms as “incomplete or fabrications of the state”. This interpretation of what is meant by “to educate the public” in object B (namely, promotion of its particular viewpoints) is supported by object C — “to network with other like-minded groups and academics”.
I do not consider these objects fit comfortably with the advancement of education. Simon France J found that Family First’s “primary activity is advocacy for a specific viewpoint”.[165] The Judge said he understood this was conceded.[166] I consider it to be beyond argument.
[165]High Court judgment, above n 1, at [48].
[166]At [60].
The majority criticise Simon France J’s judgment because it “touched only briefly on the advancement of education category”.[167] I consider the Judge was correct to do so. Unless Family First’s purpose of promoting/advocating its particular views is of public benefit in the way the law regards as charitable (thus qualifying under the fourth head), it is not entitled to registration irrespective of whether it has an additional charitable purpose of advancing education. Family First did not shrink from the task of attempting to demonstrate that its advocacy purpose is charitable under the fourth head. It confronted the issue head-on, leading off with this as its primary argument on appeal. As the majority observe, it appears from Simon France J’s judgment that this is how the argument was run in the High Court as well.[168]
[167]Above at [94].
[168]At [94].
To put this in perspective, in December 2015, Charities Services asked Mr McCoskrie of Family First to provide a description of its “advocacy” on any “causes” and the proportion of its total time devoted to such advocacy. Mr McCoskrie replied in February 2016 that he estimated Family First spent 75 per cent of its time on advocacy for the following causes:
(i) Promoting marriage and families (including advocacy in the areas of strengthening marriage, parenting, the Child Youth and Family Services, child abuse, family economics, aged care and sex education);
(ii) Promoting life (including advocacy against abortion, to maintain the status quo in relation to euthanasia and against embryonic cell research); and
(iii) Promoting community values and standards (including advocacy in the areas of prostitution, pornography and standards and censorship).
Mr McCoskrie said the balance of 25 per cent of Family First’s time was spent on “administration, fundraising and supporter/database management”. Education was not mentioned. To give further perspective on the relative importance of this aspect of Family First’s purposes and activities, in the 14 years since Family First was formed it has published a total of 21 reports on its website.
The critical issue in the case has always been whether Family First’s acknowledged non‑ancillary advocacy purpose as described qualifies under the fourth head.[169] On the current state of the law, based on the Supreme Court’s guidance in Greenpeace, I agree with Simon France J that the answer must be “no”.
[169]This is why the appeal against the first deregistration decision was held up to await the Supreme Court’s judgment in Greenpeace: see Re Family First New Zealand, above n 20, at [14]. It is also why CLAANZ was given leave to address the Court on the topic of “determining whether a political advocacy organisation exists for a charitable purpose of public benefit, wider benefits flowing from the means and manner of its political advocacy, including from the fact of that advocacy itself, should be taken into account”. These were mis-steps if none of Family First’s objects fit within this category.
The majority consider that “the institutions of the family and marriage” are self-evidently beneficial as a “public good”.[170] I assume “public good” in this context is a reference to the public benefit test required under the fourth head of charity.[171] Assuming that to be so, it is questionable whether the “traditional family” or “family” is a public benefit in the sense the law regards as charitable, rather than a section of society on whom charitable benefits may be conferred. The majority’s analysis appears to conflate the two limbs of the public benefit test. The purpose must be such as to confer a benefit on the public or a section of the public (the benefit component) and the class of persons eligible to benefit must constitute the public or a sufficient section of the public (the public component). The traditional family (or family generally) is the public component, not the benefit component. The family is not a benefit fitting within the spirit or intendment of the preamble to the Statute of Elizabeth with the object of relieving the burden that would otherwise fall on parish ratepayers — such as relief of aged and poor people, repair of bridges etc. The parish ratepayers (the public component) would typically be families fitting Family First’s conception of the traditional family. I consider the focus on “family” as a “self-evident public good” is misplaced and does not satisfy the benefit component.
[170]Above at [123] and [138].
[171]At [131].
The question is whether Family First provides a benefit to the community, or a section of it, that the law regards as charitable. Family First’s advocacy provides no tangible public benefit to families. It is therefore necessary to consider whether in promoting or advocating its specific viewpoints or causes, the ends promoted, or the means and manner of promotion, are of a public benefit in the charitable sense.[172]
[172]Re Greenpeace of New Zealand Inc, above n 13, at [76] and [102].
It is helpful to revisit what Elias CJ said in Greenpeace about whether advancement of causes is likely to qualify as charitable under the fourth head:[173]
[73] Advancement of causes will often, perhaps most often, be non‑charitable. That is for the reasons given in the authorities — it is not possible to say whether the views promoted are of benefit in the way the law recognises as charitable. Matters of opinion may be impossible to characterise as of public benefit either in achievement or in the promotion itself. … Furthermore, the ends promoted may be outside the scope of the cases which have built on the spirit of the preamble, so that there is no sound analogy on which the law might be developed within the sense of what has been recognised to be charitable. Even without a political purpose exclusion, the conclusion in Molloy (that the purpose of the Society for the Protection of the Unborn Child was not charitable) seems correct. The particular viewpoint there being promoted could not be shown to be in the public benefit in the sense treated as charitable.
[173]Re Greenpeace of New Zealand Inc, above n 13.
The reference to Molloy is instructive.[174] It is the most closely analogous case in New Zealand. It concerned the charitable status of the Society for the Protection of the Unborn Child which opposed the liberalisation of the law relating to abortion, the same position taken by Family First on that topic. Family First’s objects are in many respects similar to the objects of the Society in Molloy. For example, the Society’s objects included “to encourage and promote study and research and the collection and dissemination of information on the moral, medical, legal, political and social implications of pregnancy” and “to inform and educate the public on the need for legal and other safeguards for protecting and preserving the rights of unborn children”.[175] This Court found that the Society did not qualify for charitable status.[176] As can be seen from the passage quoted above, Elias CJ, writing for the majority, expressed the view that the outcome in Molloy appeared to be correct even though the “political purpose” exclusion was no longer good law.
[174]Molloy v Commissioner of Inland Revenue, above n 16.
[175]At 692.
[176]At 697.
If the Society in Molloy would not qualify under the fourth head even after Greenpeace, it is hard to see how Family First could do so. The parallels between the objects of the Society and those of Family First are obvious. The majority recognise this but consider Family First’s advocacy on these types of issues is not disqualifying because of the “ancillary” carve-out.[177] The majority say Family First’s “engagement in the deliberations of the community on issues such as abortion, assisted death, anti‑smacking laws, prostitution reform and censorship is properly characterised as part of its broader purpose of supporting marriage and family”.[178] They say it is not “non‑charitable activity of a more than ancillary nature” viewed “in the context of Family First’s overall charitable educational and advocacy purposes”.[179]
[177]Above at [176].
[178]At [164].
[179]At [168].
Three points should be noted about this. First, the majority appear to accept that Family First’s advocacy on these issues is non-charitable (non-charitable but not more than ancillary in nature). I agree with the non-charitable conclusion. Based on Greenpeace and Molloy, such advocacy does not qualify under the fourth head. Secondly, the majority do not explain how they arrive at their conclusion that this activity is no more than merely ancillary. Their conclusion seems to me to be seriously at odds with the evidence, including Mr McCoskrie’s advice to Charities Services referred to at [195] above. Thirdly, I am unclear how advocacy on particular issues could be said to be ancillary to an advocacy purpose.
The “more difficult issue” identified by the majority concerning “the extent to which Family First has advocated over time for very specific issues of the day” is also said to be embraced by the “ancillary” exception. Examples given of these “issues of the day” are Family First’s opposition to the liberalisation of laws relating to divorce, prostitution, abortion, child-smacking, cannabis and euthanasia.[180] It is not immediately apparent how these “issues of the day”, leading the majority to issue a cautionary warning to Family First,[181] are distinguishable from those referred to above at [201]. Indeed, some of these “very specific issues of the day” feature in both lists — abortion, euthanasia, anti‑smacking and prostitution.
[180]At [169] and [175].
[181]At [176].
In summary, Family First’s cause advocacy (promotion of its specific viewpoints) is not of self-evident or established public benefit such that it qualifies under the fourth head of charity. The majority appear to recognise this. In disagreement with the majority, I do not consider that Family First’s advocacy on these issues can be categorised as merely ancillary to some other charitable object. Rather, the evidence demonstrates that this forms an important part of its core purpose.
Solicitors:
Brace Legal, Porirua for Appellant
Crown Law Office, Wellington for Respondent
Sue Barker Charities Law, Wellington for Charity Law Association of Australia and New Zealand as IntervenorAPPENDIX ONE:
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA574/2018 BETWEEN FAMILY FIRST NEW ZEALAND
AppellantAND ATTORNEY-GENERAL
Respondent
AND CHARITY LAW ASSOCIATION OF AUSTRALIA AND NEW ZEALAND
Intervenor
Counsel: P D McKenzie QC and I C Bassett for Appellant
P J Gunn and A P Lawson for Respondent
J J Batrouney QC and K G Davenport QC for Intervenor
Minute: 29 October 2019
MINUTE OF THE COURT
The purpose of this minute is to record the steps which are to be taken following the hearing of this appeal:
(a)The Attorney-General, in consultation with Family First, will prepare a timeline of the consideration by the Charities Commission and the Courts of the question as to whether or not Family First qualifies for registration as a charity. That timeline will cross-reference the relevant decisions already in the bundle, and add any that are not. The timeline will also include the delivery by Charities Services to the Commission from time to time of the substantive reports that are already in the bundle, and any that are not.
(b)Family First agreed to provide the letters of instruction (to use our own phrase) that resulted in the preparation of the reports found in volume 8 of the case that were not before the Charities Commission or the High Court in terms of the most recent decision. On reflection, we consider that it would be appropriate that those documents be provided as annexures to an affidavit sworn on behalf of Family First, to be provided as updating evidence confirming the arrangements that resulted in the production of those reports, and the “true copy” status of those commissioning documents. Family First will liaise with the Attorney-General before that affidavit is filed in Court. We note, by way of background, our understanding is those reports were both commissioned by, and paid for by, Family First. If that is not the case, the affidavit will no doubt reflect that.
In the circumstances, we do not think it is necessary to set a date by which those materials are to be provided. The parties will, we are sure, do so in a timely fashion.
We also record our understanding that the material before us, not before the Commission or the Court below, may be treated as updating evidence admitted in this appeal by consent, and may be relied on by us as such in reaching our substantive decision.
________________________
Clifford J
For the Court
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