NZ Court Rules in Favour of Campaigning Charities

In New Zealand, campaigning organisations can register as charities following a landmark Supreme Court ruling in the wake of a long-running court battle waged by global environmental organisation Greenpeace.

The NZ Supreme Court overruled an earlier Court of Appeal, saying that charities can engage in political activities.

Greenpeace’s executive director Bunny McDiarmid said the decision makes New Zealand democracy a little stronger.

“It means that the Supreme Court has now recognised that trying to change our world for the better, and taking on government to do that, is a public good,” McDiarmid said.

“This has been a legal marathon, and it’s great to see that New Zealand democracy took out the gold.”

In June 2008 Greenpeace New Zealand applied to the Charities Commission to be registered as a charity.

The Charities Commission declined Greenpeace’s application in April 2010.

The Commission said that, although the bulk of Greenpeace’s purposes and activities, such as the promotion of the protection and preservation of nature and the environment, were charitable, the promotion of disarmament and peace would not be charitable.

In December 2010 Greenpeace appealed to the High Court. But in May 2011 the High Court found that Greenpeace should not be able to register as a charity because the organisation’s nuclear disarmament purposes were independent political purposes and therefore non-charitable.

Greenpeace said that in September 2012 it took the case to the Court of Appeal.

“In November 2012 the Court of Appeal agreed with Greenpeace, and said that the organisation’s peace and disarmament purposes were broadly charitable and the Charities Commission (now called the Charities Services) should consider the application again,”  McDiarmid said.

“The Court agreed that political advocacy did not disqualify an organisation from being a charity, as long as it was not a ‘primary purpose’. The Court also said that any activities carried out by a charity that were illegal would preclude that organisation from being a charity.”

However, in May 2013 Greenpeace headed to the Supreme Court to challenge two of the Court of Appeal’s findings, arguing that restrictions should not be put on political advocacy, as it is not consistent with New Zealand’s participatory democracy for there to be a general prohibition on participation.

“The organisation also questioned whether the Court was able to judge where public benefit lies around political advocacy,” McDiarmid said.

The NZ Charities Board issued a statement on its website saying “We appreciate the clarity the Court has provided on the issues raised before it”.

“The independent Charities Registration Board and the Charities Services registration team will study the judgment closely,” it said.

The NZ Supreme Court also issued a statement outlining its reasons for the judgement.

“The Supreme Court by majority allowed the appeal against the Court of Appeal’s determination that a political purpose cannot be a charitable purpose,” the statement said.

“The majority held that a political purpose exclusion should no longer be applied in New Zealand. They concluded that a blanket exclusion of political purposes is unnecessary and distracts from the underlying inquiry whether a purpose is of public benefit within the sense the law recognises as charitable.

“They rejected the conclusion of the Court of Appeal that s 5(3) of the Charities Act enacts a political purpose exclusion with an exemption if political activities are no more than ‘ancillary’. Rather, s 5(3) provides an exemption for non-charitable activities if ancillary.”

The Court unanimously dismissed the appeal against the Court of Appeal’s determination that purposes or activities that are illegal or unlawful preclude charitable status. The Court held that an illegal purpose is disqualifying and that illegal activity may disqualify an entity from registration when it indicates a purpose which is not charitable even though such activity would not justify removal from the register of charities under the statute.

The Australian Conservation Foundation said it was thrilled to see the New Zealand Supreme Court upholding the right of charities to undertake political advocacy activities in the public interest.

“The case brings the law in line with Australian law, and actually goes a step further. In Australia the law is clear that political advocacy activities are not inconsistent with a charitable purpose. However, the NZ court has gone so far to say that in far a political purpose itself can be charitable,” ACF General Counsel, Elizabeth McKinnon said.

“What we are seeing in courts across Australia and NZ is a strong trend acknowledging that taking on the government of the day is necessary and legitimate for charities who are trying to serve the public by changing the world for the better.

“Decision after decision makes it clear that not only are these activities legal, but groups that do these activities play a legitimate and productive role in civil society,” she said.

“Greenpeace NZ should be congratulated for pursuing this through the courts and in doing so, obtaining a decision that will serve all charities who advocate to address systematic public interest issues in society.”

View the full decision and statement HERE.