We will claim the Pavlova and Russell Crowe as ours – but not your law on charities and advocacy

Family First New Zealand (FFNZ) takes a traditional approach to the importance of marriage and families. Since its establishment in 2006, it has engaged in community discussions on divorce, prostitution, pornography, broadcasting standards and censorship, availability of alcohol and tobacco, gambling, abortion, euthanasia, embryonic cell research and traditional marriage.  It has done this in many ways, including published opinions, polemics and dissemination of various forms of research.

It was deregistered as a charity in 2013 by the New Zealand Charities Registration Board (Board) as FFNZ’s purposes were held to be not solely charitable as its primary purpose was advocacy for a particular point of view. Over the next 7 years, there were 5 decisions about its charitable status until the final appeal was heard by the Supreme Court of New Zealand in Attorney-General v Family First New Zealand [2022] NZSC 80.

The Attorney General argued that FFNZ’s objects:

• were neither the advancement of education;
• nor qualified as advancing objects that are beneficial to the community; and
• in any case, it had other non-charitable objects that were not ancillary to any purpose found to be charitable.

The Court concluded that FFNZ did not qualify as a charity for the advancement of education as the evidence showed that its primary object was to advocate rather than educate. Its publications lacked the balance or neutrality needed to legitimately further an educative purpose, as the papers sought to persuade people to its point of view and seek support for its efforts to bring about (or resist) a change of policy or law.

The Court found that the object of promoting the family as foundational to a stable society could be a charitable object, but the advocacy of the role and importance of FFNZ’s particular version of the family and of marriage between a man and a woman is self-evidently beneficial in a charitable sense and could be seen as discriminatory. Any benefits had to be weighed against any detriment and the Court considered it highly debatable that the benefits outweighed the detriments in this case.

The important difference between this case and Greenpeace decision^[1] was the advocacy of FFNZ’s causes was not advocacy for ends that are themselves charitable, like human rights, the protection of the environment or public amenities.

The Supreme Court concluded that the Charities Registration Board was correct to resolve that Family First be deregistered.

Application to Australia

In Australia, the legal principles are clearer that the charity head of education does not become propaganda when the content is unpopular. The Australian Courts’ view on the issue in Aid/Watch^[2]and the Charities Act mean that advocacy for political purposes is not itself incompatible with charitable status.  Where the line is drawn in Australia between charitable purposes and general public benefit and the disbenefits of discrimination may differ from New Zealand, but there still is a line.

Organisations that:

• have a purpose (not a mere activity) to promote or oppose a political party or a candidate for political office;
• have a purpose (not a mere activity) to engage in or promote activities that are unlawful;
• have a purpose (not a mere activity) to engage in or promote activities that are contrary to public policy (which, in this context, means the rule of law, our constitutional system, the safety of the public or national security);

may well find themselves on the wrong side of the charity line.

[1] In Re Greenpeace of New Zealand Inc [2014] NZSC 105 the Court held by a majority, contrary to earlier authority, that the NZ charity provision does not create a general exclusion of advocacy from charitable purposes, even where it is more than an ancillary purpose, and there is no standalone doctrine of exclusion of political purposes in New Zealand.

[2] Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42

Article by:

Myles McGregor-Lowndes
Consultant
Email Myles