The charitable aspirations of Greenpeace in New Zealand have persisted since 2008 and this decision saw the organisation finally succeed in achieving charitable registration. In her judgment Justice Mallon helpfully canvasses the history of Greenpeace’s efforts and the changing emphasis in the organisation’s advocacy. She notes that, having originally advocated for what were seen in the past as political causes, Greenpeace now advocates for environmental protection especially from climate change.
The Supreme Court’s 2014 decision on Greenpeace clarified that even advocacy of political causes could be charitable if a sufficient public benefit could be established. How that affected Greenpeace was remitted back to the Charities Registration Board for it to be considered with the benefit of the Supreme Court’s guidance.
The Board declined again to register Greenpeace, despite the Court’s findings, and Greenpeace’s appeal to the High Court was the subject of this decision. In tandem with the appeal, Greenpeace sought judicial review of the Board’s decision on the grounds of apparent bias. This stemmed from the role one of the Board’s members, Mr Karipa, had with an organisation whose interests on matters relating to commercial fishing could be seen to diverge from Greenpeace’s. The judgment contains a very helpful summary of the principles applicable to apparent bias.
The appeal arguments and outcome
On behalf of the Board, the Attorney General submitted:
(a) Greenpeace’s advocacy for causes, which is its main focus, did not
meet the Supreme Court’s test for registration;
(b) Greenpeace’s activities do not have an educational purpose because
they are intended to persuade recipients to a particular point of view
rather than to educate;
(c) for the reasons given by the Supreme Court, the organisation’s purpose of promoting
peace, nuclear disarmament and eliminating weapons of mass
destruction is not charitable; and
(d) Greenpeace undertakes and endorses illegal activities to support its
purposes to such an extent that an illegal purpose can be inferred so as to disqualify it from charitable status.
Greenpeace argued that the Board:
(a) Took an approach that was too narrow and “fine-grained” to whether the
views Greenpeace advocated for the protection of the environment
were of public benefit, including by focussing too heavily on whether
there were different views to those that Greenpeace advocated for
as to how the end goals could be achieved;
(b) Failed to apply the proper test to whether Greenpeace’s activities
were for the advancement of education;
(c) Wrongly found that any non-charitable component of Greenpeace NZ’s
purposes relating to peace, disarmament and elimination of weapons of
mass destruction were not ancillary to Greenpeace NZ’s main purposes;
(d) Wrongly concluded that Greenpeace had an illegal purpose when
its objects do not include breaking the law and the instances of
personnel or volunteers doing so were isolated and of a minor nature.
Although the Court’s discussion of the various arguments is wide ranging, the ultimate decision is succinctly put by the Judge:
I consider the Board was in error in declining Greenpeace NZ’s application for
charitable status. Greenpeace NZ’s main activity is to advocate for the protection of
the environment. It does that mainly by advocating for measures to mitigate climate
change, for sustainable fishing for the protection of the ocean environment and for
improving the quality of New Zealand’s freshwater. There is a charitable public
benefit in that advocacy, as it contributes to the broad-based support and effort
necessary for the end goal of protecting the environment. The advocacy takes a variety
of forms. Where it involves commissioning independent scientific research that it
makes available on its website, it also advances education. Greenpeace NZ’s purpose
to promote peace, nuclear disarmament and the elimination of weapons of mass
On the issue of advocacy, the Court relied on a distinction drawn by the Supreme Court between advocacy for causes that were general and abstract and therefore not necessarily charitable, such as world peace, and advocacy for causes that were charitable in and of themselves. Environmental protection was one such cause. Of course, there are lines still to be drawn but even when there are competing interests and viewpoints in relation to environmental concerns, the Judge held that:
On the issue of advancing education, the Judge held that the Board conflated two things when considering research that Greenpeace commissioned on environmental matters. The Board’s decision against Greenpeace was in part based on the view that the organisation presented such research in a slanted way. However, that conflated the commissioning and dissemination of research (which was educational and therefore charitable) with what Greenpeace itself did with the research. The latter advocacy was in pursuit of environmental causes, also charitable, so that the Board had misdirected itself on two counts.
The Judge dealt similarly with arguments over advocacy for nuclear disarmament, finding that this was essentially a relic of Greenpeace’s past, despite it remaining an objective. The question of an illegal purpose was examined against the background of a list of illegal protest action by Greenpeace members and Greenpeace International over the years that the Board had characterised as:
The Judge doubted whether a Court considering charitable status could have all of the information to be able to decide the illegality of actions it was being asked to take into account in a “fact and degree” analysis. To take one example the Court could not say if hanging a banner on a crane next to the Beehive damaged the crane so that a serious offence had occurred as opposed to less serious protest. In an enlightened assessment of the position, Mallon J noted that the events being considered:
… are a form of non-violent protest and are one of the ways that Greenpeace NZ
advocates for the environment. Protesting is an exercise of the right to freedom of
expression and the right to freedom of thought, conscience and belief. Sometimes
After analysing the extent to which non-violent direct action featured in Greenpeace’s budget, the Judge concluded that quantitative and qualitative assessment indicates that breaches of the law comprised a very small part of Greenpeace’s main activities, which advocate for the protection of the environment in lawful ways. It was not possible to infer from sporadic breaches of the law that are at the low end of seriousness that Greenpeace had an illegal purpose.
The judicial review aspect of the case involves an interesting summary of principles related to apparent bias as a ground for review. The Judge first summarised the law on which there was no disagreement:
A decision maker who is biased is disqualified from hearing a case unless he
or she discloses the disqualifying interest and the parties waive their rights of
objection. The rule against bias is at its most demanding when applied to the judiciary.
It is at its least demanding when applied to low-level administrative bodies. The
statutory scheme, the consequences of the decision-making, the degree of formality of
the decision-making and the distinctions between judicial and administrative functions
She went on to note that this included apparent bias, which she said arises:
An appeal can cure a decision that is infected with bias but not where the infection extends to the appeal.
In this case the more problematic apparent bias related to the involvement of a Board member, Mr Karipa, with commercial fishing interests which might be regarded as adversely affected by Greenpeace obtaining charitable status. While the Judge found nothing untoward in the contributions Mr Karipa made to the Board’s consideration of Greenpeace’s application, she held that competing interests over the Kermadec Ocean Sanctuary proposal gave rise to the possibility that Mr Karipa would not have an open mind on Greenpeace’s application for charitable status. He may not have acted partially but the test does not require that. Justice must be seen to be done and the possibility that it might not be was enough to cause the Judge to find for Greenpeace.
Rather than remit the matter to the Board yet again the Court was urged, and agreed, to decide the issue of charitable status in Greenpeace’s favour leaving it to the deregistration process to deal with anything that might come to the Board’s attention after the decision. The successful appeal from the Board's decision cured the apparent bias so the finding on review was resolved.
© G D Clews, 2020