Political purpose and charitable purpose are not mutually exclusive. That’s the view taken by the Supreme Court in its decision on the Greenpeace of New Zealand Inc (Greenpeace) dispute. This opens the gates for other organisations with political purposes who seek charitable registration.
Greenpeace has been in dispute with The Charities Board (formerly the Charities Commission) for more than four years over whether or not it is charitable. Its registration as a charity was declined in 2010 because two of its key purposes - the promotion of nuclear disarmament and peace; and the promotion of legislation supporting its other objects - were viewed as political and therefore non-charitable. The Commission also found that some of Greenpeace’s direct action potentially entailed illegal activity which was contrary to public interest.
A political purpose can be anything that promotes a particular political party; promotes legislative change, such as advocacy; or promotes a change of national or foreign government policies.
Until now, New Zealand courts have abided by a blanket exclusion from charitable purposes for political purposes, based on relatively scant authority. Only if a political purpose was ancillary to a charitable purpose, and not an independent purpose, could an organisation still be charitable. This dispute has taken Greenpeace through the High Court, Court of Appeal and now the Supreme Court.
The Supreme Court has in the latest decision, by a narrow majority, departed from existing common law and decided that a political purpose is not automatically excluded from being a charitable purpose.
Instead, the Court says that any purpose has to be assessed on its merits - it needs to advance the public benefit in a way that is within the spirit and intendment of historical categories of charity but, importantly, must be adaptable to current day society. The majority of the Court decided that the value placed on public and democratic participatory process in administrative and judicial decision making means there is no satisfactory basis for drawing a distinction between general promotion of views and advocacy of law change.
This is consistent with the High Court of Australia’s decision in Commissioner of Taxation v Aid/Watch.1
The Supreme Court’s decision also involves the interpretation of section 5(3) of the Charities Act. The Charities Board considered that it codified the political purpose exclusion but the Supreme Court disagreed. The majority in the Supreme Court determined that New Zealand’s Charities Act was not attempting to codify what is and what is not charitable. Its intention was to follow the 'case by case’ basis operative before the introduction of the Act and assess what is currently charitable by analogy with what has historically been considered charitable. The definition must be adaptable to the way society works, which means that what is considered to be ‘charitable’ changes in response to changing social conditions.
As a result of the Supreme Court’s decision, the charitable status of Greenpeace’s objects have been referred back to the Charities Board. The continuing challenge for Greenpeace is that promoting 'nuclear disarmament and peace' is like promoting an idea or abstraction. It is harder for them to show charitable purpose as readily as someone who can show tangible good like housing the homeless. The way in which they promote nuclear disarmament is as important as the end itself and both of these aspects will be the focus of the Board when it comes to reassess Greenpeace’s purposes.