When the Supreme Court decided in Greenpeace that advocacy of a political viewpoint was not necessarily fatal to a claim to charitable status, the need for clarification was obvious. The boundaries of the Greenpeace decision were likely to be stretched by any number of organisations advancing their own view of the world while arguing that, in doing so, they were acting with an object that was educational or beneficial to the community, or both.
One such organisation is Family First New Zealand (FFNZ), which for many years has promoted a singular vision of what family life and family values should be. FFNZ has had a fraught relationship with the Charities Registration Board and has taken its campaign for charitable status through all levels of our Court system. That campaign has finally been resolved against FFNZ by the Supreme Court, after FFNZ failed in the High Court to secure registered charity status but was successful in the Court of Appeal. The Supreme Court has reversed the Court of Appeal and denied charitable registration.
The decision raises, and seeks to resolve, important issues about the nature of charitable education and the extent to which the promotion of a particular social point of view can be seen as beneficial to the community. It is also noteworthy for a supporting judgment from Justice Joe Williams which is an outstanding contribution to understanding the moral and ethical underpinnings of our charity law and the way Courts ought to approach decisions at the margin.
The case for FFNZ was advanced on the two grounds referred to above – that it had educational objects and that its objects were generally beneficial to the community. Importantly, the grounds did not extend to the promotion of religion, in which context it could be said there is an approach to the propagation of a singular belief or viewpoint that stands apart from the approach taken by the Supreme Court. It will be interesting to see if the expectations expressed by the Court, and by Williams J especially, colour future considerations of the religious head of charity especially in terms of societal consensus. In the meantime, the Court’s commentary is more limited.
In addition to the grounds on which FFNZ argued that its objects were charitable, there was a preliminary skirmish to resolve a difference of approach taken in the High Court and Court of Appeal. The issue was whether the Court should assess the objects of the organisation by reference to its constitutional statements only, or also consider what it actually does. The latter approach had marked the High Court’s decision and the former was more that of the Court of Appeal majority and was supported by the Charity Law Association of Australia and New Zealand as intervener. This rather narrow approach was based on the view that the only valid objects of a charity are those that are stated in its constitution and that inquiry beyond that should occur only if they were ambiguous or there was concern that they were sham objects.
The Court dealt with this in short order, noting that the statutory regime for registration and deregistration of charities necessarily requires a consideration of what an organisation actually does as well as what it says it does.
Education as a charitable object – education vs propaganda
The first main argument was whether FFNZ’s objects were educational and so charitable. It argued that this was to be determined from the constitutional statement of those objects but, if more was needed, it pointed to a history of publishing reports of educational value, the conduct of conferences and the provision of an online reading room.
The education head of charity is assumed to be beneficial publicly unless proven otherwise and this was the primary argument advanced in the SC, contrary to the approach taken in the Courts below. The Court drew on authorities in NZ and Canada to state the relevant legal test:
…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
The nub issue was whether, measured against this test, FFNZ was pursuing education in the charitable sense when it propagated a singular viewpoint on the subject matter. The distinction was between education and propaganda. The Court noted that its decision in Greenpeace about political advocacy raised the question whether that distinction should still be hard and fast. However, it disposed of this possibility on the basis that the distinction lies in the fact that propaganda lacks the public benefit inherent in education. Just where to draw the line between the two has become blurred, the Court said. The relevant inquiry is whether the entity’s purpose is capable of securing the public benefits said to accrue from education, even though the entity expresses a view on the subject matter. The Court held that expressing a viewpoint is not fundamentally incompatible with education but set out two important principles:
If these ruled out education as a charitable purpose, the entity was left having to support its status on the fourth head of charity, general community benefit.
After examining the stated objects of FFNZ, the Court held that they did not clearly exhibit a purpose of advancing education and it turned to consider whether the activities of FFNZ (that is, how it is said to advance an educational end) support the proposition that it exists for that purpose. After considering each of the elements of FFNZ’s asserted educational activity, the Court concluded that a number of its published papers fell on the “trying to convert” side of the line between education and propaganda. Others were not prepared in the neutral and balanced way that could support an educational object, even though advancing a viewpoint. The same criticisms were levelled at FFNZ’s forums and reading room, the latter of which really created a silo within which FFNZ’s views echoed amongst members. FFNZ’s primary purpose was to advocate rather than to educate.
Beneficial to the Community?
On the alternative fourth head of charity, FFNZ argued its objects of supporting the family and marriage as foundational to a strong and enduring society, is a purpose beneficial to the community that is charitable by analogy with other cases. The authorities require that such benefit be self-evident and the Court of Appeal majority had accepted that, seeing FFNZ’s objects as being broadly within the cases dealing with “moral and mental improvement”. In addition to doubting the correctness of some of those cases, the SC held that advocating a particular viewpoint of family was not analogous to advancing moral and mental improvement.
This is a line that is likely to generate ongoing debate because such cases inevitably depend on one’s view of what is moral and what is an improvement. Subjective considerations abound in this area, and it is very likely that the safe haven for such considerations lies in the promotion of religion, which inevitably involves a belief system some would say represents a particular view.
The fourth head of charity requires that the claimant establish a public benefit and analogous connection with the body of charity case law. Drawing on Greenpeace, the Court held that whether advocacy or promotion of a cause or of 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.
Advocacy of the traditional family was not analogous to advocacy of universal benefits such as human rights, environmental protection and community betterment. While promoting the family as foundational to a stable society could be a charitable object, advocacy of FFNZ’s particular version of “family” was not self-evidently beneficial in the required charitable sense. Indeed its object was discriminatory and incompatible with basic tenets of modern NZ society. Moreover, advocacy against abortion and euthanasia could not be seen as connected with family values but had to be seen as “freestanding political issues” which could not be charitable.
The intervener raised two arguments. The first was that the Court should not take into account the tax benefits said to accrue to a charity when considering charitable status. Essentially the argument was that a charitable tax exemption was not a tax concession but a defining part of the tax base. The argument originates in an observation in Greenpeace about fiscal benefits accruing to charities and the analogical approach to charity cases. The Court saw nothing in this point and confirmed the long- standing analogical approach.
The second argument from CLAANZ was that the deregistration of FFNZ as a charity impinged on its right to freedom of expression under section 14 of the Bill of Rights Act. The issue had been raised in relation to registration in Greenpeace and the Court referred with approval to a commentator who noted:
There does not appear to be convincing authority for the argument that removing or denying charitable status is a limitation on freedom of expression. Removal of charitable status is more akin to the permissible withdrawal of a state subsidy rather than the suppression of political expression.
The concurring judgment of Williams J
This judgment is an excellent opinion on the ethical underpinning of charity law and will stand as a marker against which advisers and judges alike will assess whether charitable status can be made out in more difficult cases.
The Judge recognises that “adaptive incrementalism” in the development of charity law has occurred with little guidance in principle. This has led to the “steady encrustation of contradictory decisions” onto the charitable purpose canon — especially under the fourth (analogous) Pemsel head. The Judge sets about trying to provide some guidance in principle.
A case note such as this is hardly adequate to the task of examining the Williams “Canon of Charity”, but there are some core statements that every person concerned to understand where charity law comes from and where it may be going should examine carefully:
Considering the FFNZ arguments, Williams J examined the education head of charity against these principles. He noted that one-sided promotion of personally held views or views one supports is not education in the charitable sense. Nor is disseminating information that only reflects the disseminator’s view. He saw two reasons why, even if the subject matter is of great social importance, one-sidedness neutralises educative value. The first is that promoting only one side of an idea or cause can detract from the cohesiveness of our pluralistic community, because it ignores other perspectives on the same thing. Secondly, that does not respect individual dignity, because it does not empower the receiver to make up their own mind.
The Judge recognises that these observations could be contentious. For instance it is hardly possible to require that every educational work scrupulously canvas all competing viewpoints. He acknowledges that in saying that charitable education need not be “opinion-neutral”. But it must acknowledge alternative perspectives fairly and respectfully. By doing that it will be consistent with “the underlying non-self-referential values of charity.” FFNZ’s “education” was too one-sided and therefore too self-referential to be charitable.
Similarly, when considering the fourth head of charity, it is often difficult to discern public utility in an advocated position and advocacy will often be too self-referential to meet the public benefit requirement. The Judge observed that a self-evidently charitable purpose probably means no more than that there exists a broad consensus in the community about the utility of the purpose, in terms of its contribution to social cohesion and well-being, and its consistency with underlying societal values, so that advocating for it will therefore also be charitable. Does this mean that in the context of advocacy charity is the preserve of the mainstream and not the outlier? That is not what the Judge suggests, and he acknowledges that promoting controversial ideas is not necessarily disqualifying. The key will be how that is done, because “honesty and respect in debate is not self-referential.” Unfortunately, the manner and means by which FFNZ advocated for its singular view of family was not, overall, fair balanced and respectful.
These observations by Williams J are a welcome reminder that public discourse and the debate and exchange of ideas are vital to a thriving democratic society. However, the benefits of charitable status require that the discourse in question be conducted in a manner that is consistent with the public good in the exchange of ideas rather than the often private good in having one side of a debate prevail. Trenchant views, now often broadcast on any number of topics, can confront, intimidate and ultimately suppress discourse. In politics, opinions are often polarised and debate very often descends into intolerance for the right of one’s opponent to exist, let alone voice a contrary view. None of that should possibly be regarded as charitable. The Judge’s reminder is valuable: in the right case, public discourse can be conducted with the cloak and benefit of charity if it is undertaken with civility, respect, balance and fairness. This is no “goody two-shoes” canon. It does not ban from the charitable landscape robust advocacy over ideas. It does, however, require that the manner and means by which such advocacy occurs withstand scrutiny through the lens of “selflessness.”
© G D Clews