A landmark High Court decision means Greenpeace can finally have charity status. But what happens when it’s granted to political advocates you might disagree with?
Many people might be surprised to learn that until a few weeks ago, Greenpeace wasn’t actually classified as a charity. That’s because our charity law – relying on English court decisions from 100 years ago – had excluded organisations whose main purpose included advocating for political causes (such as changes in laws or policies). Charity, it was thought, was more about doing tangible, hands-on things like running food banks and schools, supporting people who were sick and homeless, or building churches and animal sanctuaries.
This “political advocacy exclusion” existed mainly because it was usually too hard to tell if there was any charitable “public benefit” from an organisation’s political advocacy. How do you know whether the laws or policies an organisation advocates for – which might be highly contested – are for the public good? Both “pro-life” and “pro-choice” groups advocate for law changes they believe would benefit New Zealanders, but which side is right? And should a court really be passing judgement on matters best left to democratic processes? Rather than answer such tricky questions, the courts had put them into the “too-hard basket” and stayed out of the fray. It was easier to draw a bright line and say that advocating for political positions couldn’t be charitable.
But then in 2014, Greenpeace won a watershed (and controversial) Supreme Court decision that abolished the political advocacy exclusion. This cracked open the door for Greenpeace and other lobby groups to gain registration as charities – and to enjoy the tax benefits and social kudos flowing from that. Greenpeace’s battle for charitable status didn’t end there though. The Supreme Court also said that advocacy groups would still need to show their advocacy benefited the public in some way, something that would be hard to prove where tricky hot-button issues are involved. Unlike before, this forced the courts to enter the political fray.
The Charities Registration Board continued to oppose Greenpeace’s registration as a charity, effectively relying on the “too tricky/hot button issues” argument. But a few weeks ago, the High Court finally decided that Greenpeace could be a charity, recognising that its advocacy for protecting the environment and mitigating climate change undoubtedly benefitted the public.
The recent news that Greenpeace could be a charity has been met with much approval. But following swiftly in its wake was the news last week that Family First could also be a charity. Yes, two out of three of the judges in the Court of Appeal ruled that the “family values” organisation – famous for campaigning against LGBT rights and abortion, and advocating in favour of socially conservative views on smacking, euthanasia, drug reform, and conversion therapy – “advances education” and performs charitable advocacy to the benefit of the public.
So what are we to make of this? Well, there’s a lot we could say about this judgement, most of it not good. But for one thing, the version of Family First the majority approves of seems to be quite different to the Family First that puts itself into the public square. The court gave a tick to the “self-evidently important role of families in society and core family values” the group advocates for. Stripped of context, this sort of advocacy seems benign. But in granting Family First approval for this advocacy, the court disagreed that Family First’s focus on the “traditional family” – the union of a man and a woman through marriage and their biological children – was a bar to charitable status. This was because, the majority noted, “by far the larger part of the social groups constituting families in contemporary New Zealand … are between men and women” and that it would be “curious” if promoting this was not seen as for the public benefit just because there are other forms of family life.
This statement is surprising, to say the least. Family First is not simply promoting the traditional family. Rather, Family First seeks to take rights away from women and the LGBTQI+ community, and grant fewer privileges to certain forms of family life. It describes other family forms as “incomplete or fabrications of the state”. For Family First, promoting the traditional family necessarily entails working against other forms of family life. The court seems quite happy to turn a blind eye to all of this when approving Family First’s advocacy work as being in the public benefit.
Then, in the understatement of the year, the court conceded there were positions which Family First advocates for that may fall outside advocating for family and marriage as it is currently recognised in society, including their advocacy regarding divorce, alternative forms of marriage and abortion. The court hinted that this advocacy might be a problem. This is where the decision goes from confusing to unworkable, with the court giving a weak warning that Family First simply “need[ed] to bear that in mind as it determines its priorities and activities for the future”. It will be interesting to see how Family First takes account of this warning.
The well-crafted dissenting judgement took a more robust view of Family First’s activities, with the judge recognising that Family First was essentially a lobby group whose core purpose was really to advocate on “issues of the day” such as divorce, prostitution, euthanasia and abortion. For the dissenting judge, it was difficult to see how this sort of advocacy would benefit the public.
All that said, it’s at least possible to argue that both Greenpeace and Family First should be charities (and we mean the full-strength Family First, not the Court of Appeal’s sanitised version of it). If advocacy for a cause can be a charitable purpose, why shouldn’t it be permitted for all advocacy groups, regardless of the content of their views? Perhaps allowing more political perspectives into the charity sector might ensure a vibrant democracy. Indeed, this is the approach Australian courts have started to favour.
Opening the gates to charitable registration this widely could, however, undermine the public’s confidence in the charitable sector. Charities might start to be seen as little more than partisan lobby groups rather than trusted organisations that truly serve the public interest. Maybe, for the charitable sector to flourish and maintain the public’s trust and confidence, it’s better to keep the definition of charity narrow and focused on activities that provide tangible benefits to people, even if it means excluding some more sympathetic organisations.
Jane Calderwood Norton is a senior lecturer at the University of Auckland School of Law. Jordan Grimmer is a junior barrister at Shortland Chambers and a tutor in equity at the University of Auckland School of Law.
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