While floods and cost-of-living issues justifiably dominate our focus, behind the scenes, political parties continue to develop their manifestos in the lead-up to this year’s general election, Sue Barker, Director of Sue Barker Charities Law, joins us for a series on 10 election policies for charities for 2023. In the third part of the series, Sue shares her insight on two more policies on supporting public interest journalism charities and supporting charities promoting amateur sport. She will also be presenting in March at the upcoming Charities and Not for Profits Update.
Policy 3: supporting public interest journalism charities
The issue of supporting public interest journalism is a subset of policy 2: widening eligibility for donee status
In recognition of the importance to democracy of a free press, the government has been trying to shore up a struggling media by spending millions of dollars supporting public interest journalism.[1] However, state support of the media leaves the government open to criticism of undermining journalistic independence.[2] Other jurisdictions have addressed funding pressures on the media by allowing them to register as charities,[3] and therefore to access tax-supported donations and other funding (while being legally prevented from providing private pecuniary profit to any individual).
In New Zealand, narrow interpretations of the definition of charitable purpose currently act as a barrier to independent support of the media in this way (as can be seen from the struggles of the Better Public Media Trust).[4] Instead, millions are being spent on a controversial proposed merger of RNZ and TVNZ that may yet face the chop.[5] Allowing a wider range of charities to access charitable registration and therefore donee status appears to have been entirely overlooked as an important and elegant way of supporting an independent media and therefore our democracy.
Policy 4: supporting charities promoting amateur sport
In the context of allowing funding to flow to a wider range of organisations, section 5(2A) of the Charities Act needs to be repealed.
Section 5(2A) allows the promotion of amateur sport to be considered charitable, but only if it is the means by which a deeper charitable purpose (such as the promotion of education or health) is furthered. However, in recognition of the importance of sport to community health and wellbeing, most comparable jurisdictions have specifically legislated to make it clear that the promotion of amateur sport is a charitable purpose in its own right.[6]
Repealing section 5(2A) would remove this unnecessary barrier to sports clubs accessing charitable registration, donee status, and funding.
Sue Barker is the director of Sue Barker Charities Law, a boutique law firm based in Wellington, New Zealand, specialising in charities law and public tax law. Since its founding in 2012, the firm has won a number of awards, including Boutique Law Firm of the Year at the New Zealand Law Awards. Sue is a member of Charities Services’ Sector Group and a member of the Core Reference Group for the review of the Charities Act. Sue is also a co-author of the text The Law and Practice of Charities in New Zealand (LexisNexis, 2013) and a contributor to a number of texts, including Charity Law: Exploring the Concept of Public Benefit (Routledge, 2022) and Regulating Charities: the Inside Story (Routledge, 2017). In 2016, Sue was made an Honorary National Life Member of the National Council of Women of New Zealand Incorporated for her work assisting the Council with charities law issues. In 2019, Sue was awarded the New Zealand Law Foundation International Research Fellowship Te Karahipi Rangahau ā Taiao, New Zealand’s premier legal research award, to undertake research into the question “What does a world-leading framework of charities law look like?”. Her report Focus on purpose was released in April 2022 making 70 recommendations for charities law reform in Aotearoa New Zealand”. More information about Sue and the research can be found at www.charitieslaw.co and www.charitieslawreform.nz
Contact Sue at susan.barker@charitieslaw.co or connect via LinkedIn
[1] Hamish McNeilly and Catherine Harris “Govt injects $55m more into public interest journalism” Stuff.co.nz (online ed, 12 February 2021): <www.stuff.co.nz/business/124222560/govt-injects-55m-more-into-public-interest-journalism>.
[2] Kelly Dennett $55m for your troubles: the problem with public interest journalism Stuff 22 May 2022: <www.stuff.co.nz/national/300586494/55m-for-your-troubles-the-problem-with-journalism>.
[3] For example, the Charity Commission for England and Wales recognised the Public Interest News Foundation as a charity in September 2020: <www.gov.uk/government/publications/charity-registration-decision-public-interest-news-foundation/charity-registration-decision-public-interest-news-foundation>. Canada administers its charities law framework through its tax authority and is acknowledged to have a very narrow interpretation of the definition of charitable purpose. However, in recognition of the need for Canadians to have access to informed, reliable journalism, the Canadian income tax legislation has recently been amended to create a new category of qualified donee specifically for registered journalism organizations (“RJOs”) (paragraph (b.1) of the definition of “qualified donee” in s 149.1(1) of the Income Tax Act (RSC 1985 c1 (5th Supp)). As at the date of writing, eight organisations have been recognised as RJOs: <www.canada.ca/en/revenue-agency/services/charities-giving/other-organizations-that-issue-donation-receipts-qualified-donees/other-qualified-donees-listings/list-registered-journalism-organizations.html>. Like charities, RJOs are tax exempt and able to issue official tax receipts for donations and many consider RJOs should simply be recognised as charities. See, for example, ACPNS Quarterly Case Notes – June – September 2020: <eprints.qut.edu.au/205695/8/ACPNS_Quarterly_Case_Notes_Third_Quarter_2020_v4_MML_edit.pdf> at 2.
[4] See Charities Registration Board Decision 2019-1 Better Public Media Trust 24 April 2019: www.charities.govt.nz/charities-in-new-zealand/legal-decisions/view-the-decisions/view/better-public-media-trust; Better Public Media Trust v Attorney-General [2020] NZHC 350 (2 March 2020); Better Public Media Trust v Attorney-General [2020] NZCA 290.
[5] Aotearoa New Zealand Public Media Bill 146-2; RNZ Political pressure on media merger pumped up 29 January 2023: <www.rnz.co.nz/national/programmes/mediawatch/audio/2018875363/political-pressure-on-media-merger-pumped-up>.
[6] S Barker Focus on purpose – what does a world-leading framework of charities law look like? [2022] NZLFRR 3 at 445-447.
