NZ High Court finds Greenpeace NZ should be registered as a charity
August 2020 | Insights | Alex Milner
Charity laws in Australia and New Zealand have lots of similarities and also some key differences. The long-running saga of the application by Greenpeace of New Zealand Inc (Greenpeace NZ) for charitable status in New Zealand is a good illustration of this.
Greenpeace NZ, part of the international Greenpeace movement that seeks a ‘greener and more peaceful future’, first sought charity registration in June 2008. Its application to the New Zealand charity regulator was initially declined. It then successfully appealed to the Supreme Court of New Zealand, but only for the application to be remitted back to the regulator which again denied its application.
The High Court of New Zealand has now decided that Greenpeace NZ should be registered as a charity.
This article summarises some of the key points made in the Court’s decision and whether there are implications for Australian charities.
To what extent can a charity in New Zealand engage in ‘advocacy’?
The Court held that advocacy by a charity must be linked to an established charitable purpose if it forms one of the main activities of the organisation.
One of the main activities of Greenpeace NZ is environmental advocacy. The Court held that this advocacy was charitable because the protection of the environment is a purpose beneficial to the community at common law. The Court recognised that the protection of the environment requires ‘broad-based support and effort’, and while it is often in opposition to competing interests, it is no less in the public benefit because of that.
However, the Court cited with approval the earlier decision of the Supreme Court that Greenpeace NZ’s purpose to promote peace, nuclear disarmament and the elimination of weapons of mass destruction was not a purpose beneficial to the community. Had the promotion of this purpose been one of the main activities of the organisation, the manner of promotion would have been considered to determine whether it was a charitable purpose under the remaining heads of charity. For example, pursuing this purpose through education may have qualified as a charitable purpose.
When is a purpose ancillary to a charitable purpose in New Zealand?
The Court held that in determining whether a purpose of an organisation is ancillary, the Court must examine both what is expressed in the entity’s governing document and what is done by the entity in practice (that is, its activities).
For Greenpeace NZ, the Court determined that the purpose of promoting peace, nuclear disarmament and the elimination of weapons of mass destruction, whilst referred to in Greenpeace’s governing document, was not reflected in Greenpeace’s current or foreseeable activities.
When will illegal activities disqualify an entity from charitable status in New Zealand?
The Court held that ‘substantial’ illegal activity will disqualify an organisation from charitable status, but this is a question of fact and degree.
While the New Zealand charity regulator considered Greenpeace’s Non-Violent Direct Action activities to be illegal, the Court found that these activities were minimal and there was a low risk of breaking the law, so was not sufficient to disqualify the entity’s otherwise lawful activities.
What are the implications for Australian charities?
The decision is unlikely to have significant implications for Australian charities.
In Australia, since the High Court's decision in Aid/Watch in 2010 and the enactment of the Charities Act 2013 (Cth) (Charities Act) and the Not-for-Profit Sector Freedom to Advocate Act 2013 (Cth), the position is clear that charities may participate in political (or advocacy) activity, as a matter of Commonwealth law.
Advancing public debate is a charitable purpose in Australia under the Charities Act, provided that the purpose of advancing public debate is to further or advance another charitable purpose. The purpose of advancing the natural environment is included amongst the twelve listed charitable purposes in the Charities Act.
Charities cannot have a non-charitable purpose unless the purpose is incidental or ancillary to (in aid of) a charitable purpose. Applying this test will require an examination of all the relevant factual circumstances of the charity, including its governing rules and its activities.
Further, a charity may not have a ‘disqualifying purpose’ which is defined in the Charities Act to mean ‘the purpose of engaging in, or promoting, activities that are unlawful or contrary to public policy’ or ‘the purpose of promoting or opposing a political party or a candidate for political office’ (emphasis added).
While the position of advocacy by charities in Australia is settled as a matter of Commonwealth law, this position may not be reflected in State jurisdictions which laws are not subject to the definitions and framework set out in the Charities Act.
Please contact Alex Milner (Partner) if you have any queries.