Sue Barker, Director of Sue Barker Charities Law, shares an extensive overview of unresolved issues in New Zealand charities law by focusing on the test for determining an entity’s purpose. She will delve further into this topic at the upcoming Charities and Not-for-Profits: Critical Updates webinar on Friday 26 February 2021.
Despite the decision of the Supreme Court in Re Greenpeace of New Zealand Inc [2015] 1 NZLR 169 (SC) (“Greenpeace SC”), the issue of advocacy by charities remains unsettled in New Zealand. As the President of the Court of Appeal, Hon Justice Kós, recently stated extra-curially:[1] “Courts have made something of a hash of things” in this area. Fundamental issues, such as even the questions to be asked in determining whether charities are eligible for registration under the Charities Act 2005 (“Charities Act”), remain unresolved.[2]
Perhaps the most fundamental of these is the question of how an entity’s purposes are to be ascertained. Are purposes determined by a construction of the constituting document, or can the constituting document be put to one side and purposes simply “inferred from activities”? If the latter, are there any parameters around inferring purposes from activities, or can the approach be applied routinely, as an alternative option to an orthodox construction, to be applied at the will of the decision-maker?
The issue is redolent of the “substance over form” debate that has exercised tax lawyers over many years. Its significance cannot be overstated: how a purpose is described often determines whether a charity is eligible for registration or not.
What is the test for determining what an entity’s purposes are?
Under section 13 of the Charities Act, an essential requirement for registration is that an entity have exclusively charitable purposes (or, in the case of a trust, its income must be derived by trustees in trust for charitable purposes, which broadly means that its income must be applicable for exclusively charitable purposes).[3] Of course, the word “exclusively” does not mean what at first sight it might be thought to mean: an ancillary or subordinate purpose of a non-charitable nature will not prevent an entity which has a principal purpose that is charitable from having “exclusively” charitable purposes.[4] Section 5(3) and (4) of the Charities Act are intended to codify this principle.[5]
Ascertaining whether an entity’s purposes are charitable requires first ascertaining what those purposes are.
In 2004, the Privy Council approached the question, of whether the purposes of the Crown Forestry Rental Trust (“the Trust”) were charitable, by stating some fundamental general charities law principles (Latimer v Commissioner of Inland Revenue [2004] 3 NZLR 157 (PC) (“Latimer PC”) at [29]-[36]). The Privy Council made it clear that ascertaining an entity’s purposes turns on a construction of the entity’s constituting document:[6]
The issue…ultimately turns on the construction of the relevant statutory provision [which in that case was section 61(25) of the Income Tax Act 1976, a predecessor to the current charitable income tax exemption contained in section CW 41 of the Income Tax Act 2007]…and of the trust instrument, that is the trust deed…setting up the Trust.
Whether the purposes of the trust are charitable does not depend on the subjective intentions or motives of the settlor, but on the legal effect of the language he has used. [Emphasis added]
A key issue in the Latimer litigation had been to what extent the decision-maker could look beyond the terms of the trust deed to extrinsic material. Counsel for the Commissioner of Inland Revenue (“the Commissioner”) had argued that the correct approach to determining purpose was to consider the trust deed, applying normal principles relating to the construction of contractual documents; where the terms of the trust deed are clear, there was no need to inquire into activities in order to ascertain purpose (Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA) (“Latimer CA” at [33]). The High Court agreed that the terms of the trust deed were the most important indicator of purpose, but held that, where those terms do not yield certainty, it may be appropriate to look to extrinsic material. In that case, the High Court considered it was appropriate to refer to the “statutory setting” under which the trust deed was entered into, namely the Crown Forest Assets Act 1989, and the 20 July 1989 agreement between Crown and Māori to which it had given legislative force. However, O’Regan J declined the Commissioner’s invitation to go further (Latimer v Commissioner of Inland Revenue [2002] 1 NZLR 535 (HC) (“Latimer HC”) at [31]-[43], referring in particular to Commissioner of Inland Revenue v New Zealand Council of Law Reporting [1981] 1 NZLR 682 (CA) at 684, New Zealand Society of Accountants v Commissioner of Inland Revenue [1986] 1 NZLR 147 (CA) at 148 and Institution of Professional Engineers New Zealand Inc v Commissioner of Inland Revenue [1992] 1 NZLR 570 (HC) (“IPENZ”) at 572).[7]
The extrinsic evidence rule
The limited ability to look to extrinsic material in interpreting documents, such as statutes or commercial contracts, is known as the “extrinsic evidence rule”. The application of this rule in a charitable context was discussed by Baragwanath J in Inglis v Dunedin Diocesan Trust [2011] NZAR 1 (HC) at [29]-[32] in the following terms:
[29] The law’s approach to construction of charitable trusts was stated by Sir John Romilly MR in Attorney-General v Calvert (1857) 23 Beav 248; 53 ER 97 at 254; 100:
The first principle which is applicable to all these charities, without exception, is, that the intentions of the founder are to be carried into effect, as far as they are capable of being so …
The intention of the founder is a question of fact: Shore v Wilson (1842) 9 Cl & Fin 355 at 390 (HL) per Lord Lyndhurst. But, as with disputes about statutes, cases of construction of charitable trusts come before the Court because the actual intention of the author is difficult or impossible to discern. Because the Court must provide an answer, if the intentions of the founder (or the intention of the legislature) cannot be inferred from what the author has said, it must be imputed by the Court, applying settled principles of construction. Where there is no expressed intention, extrinsic evidence is admissible: Picarda The Law and Practice Relating to Charities (3ed) 249. Like a commercial document, a trust deed is to be construed in the light of what Lord Wilberforce called the factual matrix: here the circumstances known to the settlor at the time: Latimer v Commissioner of Inland Revenue [2002] 2 NZLR 195 at [36] (CA) per Blanchard J.
[30] The starting point is therefore the language of the settlor (just as in the case of statutes, s 5(1) of the Interpretation Act 1999 says that regard is to be had to the text). But the enquiry does not stop there. Since the meaning of words will vary according to context, regard must be had to the purpose of the document (as again s 5(1) of the Interpretation Act says of statutes). That context may include the passing of time since the document was prepared (which is why s 6 of the Interpretation Act states: “An enactment applies to circumstances as they arise.”
[31] So there must be considered the language of the deed; its nature and thus its purpose; and the circumstances both of its execution and of the present. It should be noted that a strict analysis of the words of secondary sources…or even of primary accounts should be approached with caution. They are clues as to the author’s intention, but are not expressions of it.
[32] The Court’s role is of interpretation, not creation. So in Attorney-General v Brandreth (1842) 1 Y & CCC 200; 62 ER 854, Sir JL Knight Bruce VC held that, when the deed stated that the charity was intended for the benefit of “the parish of Ormskirk and the adjoining parishes” but since the funds had been given to a charity which extended to other parishes as well, there was breach of the deed of trust. [Emphasis added]
The approach was recently summarised by Churchman J in Public Trust v Cancer Society of New Zealand Incorporated [2020] NZHC 615 (23 March 2020) at [11] as follows:
[11] In an application for rectification, as it also is when interpreting a document, the Court’s task is to ascertain the natural and ordinary meaning of the words in question. In the case of Congregational Christian Church of Samoa v Tilaima [HC Auckland, CIV-2008-404-1893, 20 December 2010], Andrews J said:
The starting point is to give effect to the intention of the founder, ascertained from the terms of the Trust Deed. … the relevant principles of interpretation are:
- the purpose of a trust must be derived from its deed;
- where there is no express intention, extrinsic evidence is admissible;
- factors to consider include the language of the deed, its nature and the circumstances both of its execution and at the present time;
- the Court’s role is interpretation, not creation;
- past practice based on error cannot justify breach of trust. [Emphasis added]
In other words, the purposes of a charity are determined from a construction of its constituting document, in a similar manner to the approach taken to interpreting statutes and commercial contracts. This approach is not limited in a charitable context to the interpretation of bequests.[8] To the contrary, New Zealand Courts have recently reemphasised the primacy of the written word, and the constrained ability to resort to extrinsic material, in interpreting documents more generally. For example, in Savvy Vineyards 4334 Ltd v Weta Estate Ltd [2020] NZSC 115 (22 October 2020), the Supreme Court made the following comments at [24]:
There is no dispute as to the approach to interpretation applicable. The approach is that set out by this Court in Firm PI 1 Ltd v Zurich Australian Insurance Ltd [[2015] 1 NZLR 432 (SC)]. The Court in that case said the approach was an objective one. The Court went on to accept that “in interpreting commercial contracts the courts should have regard to their commercial purpose and to the structure of the parties’ bargain, to the extent that they can reliably be identified”. The Court also said:
[63] While context is a necessary element of the interpretive process and the focus is on interpreting the document rather than particular words, the text remains centrally important. If the language at issue, construed in the context of the contract as a whole, has an ordinary and natural meaning, that will be a powerful, albeit not conclusive, indicator of what the parties meant. But the wider context may point to some interpretation other than the most obvious one and may also assist in determining the meaning intended in cases of ambiguity or uncertainty.
[Footnote: “see also at [62] where the Court made the point that “[t]o some extent,…the scope for resort to background is itself contextual”.” Footnotes otherwise omitted and emphasis added]
However, despite this authority, the agencies responsible for making decisions under the Charities Act (formerly the Charities Commission and, currently, the Department of Internal Affairs – Charities Services Ngā Rātonga Kaupapa Atawhai (“Charities Services”) and the Charities Registration Board Te Rātā Atawhai (“Charities Board”)) appear to have put these rules of construction to one side when considering whether an entity is eligible for registration as a charity. Instead, purposes are “inferred” from a charity’s activities to the virtual exclusion of the purposes as expressed in the charity’s constituting document, even when those stated purposes are perfectly clear.[9]
The Queenstown Lakes’ Decision
Examples include the controversial decision in Queenstown Lakes Community Housing Trust [2011] 3 NZLR 502 (HC) (“Queenstown Lakes”).
In the Queenstown Lakes’ case, the purpose of the Queenstown Lakes Community Housing Trust (“the QLCH Trust”), as expressed in its trust deed, was “to promote and/or provide housing…for households that…will contribute to the social, cultural, economic and environmental wellbeing of those living within the District of the Queenstown Lakes Council…at a cost within their means”.
Despite this stated purpose, Mackenzie J found at [75] that the purpose of the QLCH Trust was simply to “provide housing to selected householders”. This finding effectively determined the case: once a purpose is found to be a narrow one of simply providing private benefits to individuals, it is only a short step to find such a purpose not to be charitable; the essence of charitability is benefit to the public.
However, the High Court did not analyse why the QLCH Trust’s purpose was so to be narrowly construed, other than to say at [5] that its “reasoning does not turn on a close consideration of the wording of the objects clause”. The extrinsic evidence rule is not mentioned in the judgment.
As noted in the Queenstown Lakes’ decision at [6]-[8], the QLCH Trust was an initiative arising out of a community study undertaken by the Queenstown Lakes District Council (“the Council”) into the impact of housing affordability on the Queenstown community: housing affordability was have such a negative impact that the community was having difficulty attracting and retaining key workers vital to its functioning and operation. Queenstown is a tourist town not unlike Aspen in Colorado; work needed to service the tourist industry, such as making coffees and cleaning toilets, often does not pay sufficiently well for workers to be able to afford to live in the expensive Queenstown area. Commuting half an hour by car (assuming the worker had access to one) from either Cromwell (on the other side of the Shotover Gorge) or Kingston (at the southern tip of Lake Wakatipu) was not considered a realistic option for those working often unsociable hours on often low wages. Availability or otherwise of public transport was not discussed in the judgment.
More fundamentally, requiring essential workers to live outside Queenstown would not have provided a meaningful solution for the community: in order to protect against an Aspen-style “hollowing out”[10] of Queenstown, the social, cultural, economic, and environmental wellbeing of those living in the Queenstown area required that skilled and energetic adults, as well as young families with children, be attracted to live in and be part of the community. Encouraging such people to live in Queenstown would protect against loss of vibrancy and diversity and the adverse consequences of being unable to maintain a strong and stable workforce. It seems unlikely that the Council would have sought to assist people into housing out of the goodness of its heart. In other words, it seems intuitively clear that the true purpose[11] of the QLCH Trust was to benefit the community, rather than to benefit individual households per se.
However, because the decision was not appealed, we will not know whether a different result would have been reached if the wording of the trust deed had been closely considered, and the true purpose of the QLCH Trust found to have been providing benefits to the community. Such a finding seems eminently possible, particularly given the significant investments of taxpayer funds that have subsequently been made by government to “work around” the decision.[12]
Even so, the QLCH Trust’s reapplication for charitable registration was again declined in 2015, on the basis that its purpose was simply to help people into home ownership.[13] In reaching this conclusion, the public benefits of affordable housing, including the social cohesion that flows from security of tenure, were not analysed. Although beyond the scope of the current discussion, it should be noted that the constraints now being placed on housing charities a result of the decision demand a much closer analysis than has been brought to bear to date, particularly in the context of New Zealand’s current housing crisis.
Section 18(3)
That point aside, the uncertainty as to how purposes are to be ascertained appears to be emanating from section 18(3) of the Charities Act, which states that, in considering an application for registration, Charities Services must “have regard to” the activities and proposed activities of the entity.
The unresolved issue is whether section 18(3) has imposed a new rule of construction, specifically for entities seeking charitable registration, which displaces the extrinsic evidence rule and allows purposes to be “inferred” from an entity’s activities without reference to the constituting document even when the entity’s constituting document is perfectly clear.
It is not clear on its face that such a consequence was intended or has in fact occurred. The Charities Act requires purposes to be charitable, as discussed above, but is entirely silent on how an entity’s purposes are to be ascertained. Although section 18(3) requires activities to be considered as part of the process of assessing an application for charitable registration, it does not say what activities are to be considered for. There are no criteria set out in the Charities Act against which such activities should be assessed, and in particular there is no provision in the Charities Act requiring activities to be “charitable”.
In this respect, New Zealand legislation differs from Canada’s, where statutory references to “charitable activities”[14] have been the source of considerable difficulty, as recently noted by the Special Senate Committee on the Charitable Sector in its June 2019 report Catalyst for Change: a roadmap to a stronger charitable sector at 82:
As was noted by many witnesses, the common law registers and regulates charities by reference to charitable purposes, saying very little about the activities charities can carry on. In broad terms, “at common law, an activity is a charitable activity if it furthers a charitable purpose.” In other words:
It is through the enforcement of the requirement for exclusively charitable purposes that the common law of charity indirectly regulates the activities of charities. However, the introduction of references to “charitable activities” to the ITA has reportedly led to a sustained emphasis on activities at the expense of purposes. [Footnotes omitted]
In other words, at common law, there is no such thing as a “charitable activity” in itself: activities only make sense in the context of the purpose in furtherance of which they are carried out.[15] The various reports that preceded the New Zealand Charities Act make numerous reference to the need to find a way to ensure that charities were continuing to act in furtherance of their stated charitable purposes over time.[16] The charities register established by the Charities Act provides the means for addressing that key deficiency of the pre-Charities regime:[17] to require the disclosure of information so that charities can be monitored, to ensure they are continuing to act in furtherance of their stated charitable purposes over time, and are not engaging in serious wrongdoing. These are the key reasons regard must be had to charities’ activities, whether already registered (section 50) or seeking registration (section 18(3)). Section 18(3) does not include a Canada-style requirement that activities be “charitable” (whatever that means) nor does a requirement to have regard to activities necessitate a displacement of common law rules of construction such as the extrinsic evidence rule.
The Supreme Court decision in Greenpeace
The problem appears to have crystallised in 2014 when the majority of the Supreme Court made the following comments in Greenpeace SC at [14]:[18]
The purposes of an entity may be expressed in its statement of objects or may be inferred from the activities it undertakes, as s 18(3) of the Charities Act now makes clear. [Emphasis added]
In support of this statement, the majority referred to the Court of Appeal decision in Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA) at 693 per Somers J. The specific reference is in the following terms:[19]
The constitution does not indicate with clarity which, if any, are the main or dominant objects. In such cases it is well settled that reference is to be made not only to the expressed objects but as well to the activities of the society: see Inland Revenue Commissioners v Yorkshire Agricultural Society [1928] 1 KB 611, 633 per Atkin LJ; Keren Kayemeth Le Jisroel Ltd v Inland Revenue Commissioners [1932] AC 650, 661, per Lord MacMillan; Royal Australasian College of Surgeons v Federal Commissioner of Taxation (1943) 68 CLR 436. But the motives of those who promoted the formation of the Society are not material: see the Keren case at p661. That approach accords well with the provisions of s 84B(2)(a) of the Act [now section LD 3(2)(a) of the Income Tax Act 2007]. As it is common ground that the activities of the Society have at all times been within the ambit of its stated objects the inquiry must be focused upon what it did in pursuit of those objects. That is a question of fact. Whether a main or the main purpose so ascertained is charitable or cultural is a question of law. [Emphasis added]
In this extract, Somers J states that activities may be considered when the constitution does not indicate with clarity which, if any, are the main or dominant objects, not in substitution for a consideration of the stated objects but rather as part of that exercise.
To the extent that the comments of the Supreme Court may have created doubt about the continuing applicability of the extrinsic evidence rule in the context of determining the purposes of charities, the position was helpfully recently clarified by Ellis J in Re The Foundation for Anti-Aging Research and The Foundation for Reversal of Solid State Hypothermia (2016) 23 PRNZ 726 (“FAAR”).
Foundation for Anti-Aging Research
The FAAR litigation concerned the application by 2 charitable trusts for registration under the Charities Act. On the basis of the affidavit evidence provided to the Board, Her Honour, Ellis J, found that the trusts’ purposes of funding research into cryonics were charitable as for the advancement of education (scientific research),[20] overturning the Board’s decision on this point.
The High Court also overturned the finding of the Board that the purposes of one of the trusts, the Foundation for Anti-Aging Research (“FAAR”), included the funding of cryonics.[21] As a result, and although not strictly necessary to do so (as her Honour had already found the trusts were eligible for registration), her Honour made some important observations about the relevance of activities in construing purposes. Given their significance to the issues at hand, those observations merit setting out in full:[22]
[83] As noted earlier, s 18(3) of the [Charities] Act expressly requires the chief executive to consider an applicant’s activities when arriving at a view on whether or not it should be registered.
[84] Prior to the enactment of the [Charities] Act, the relevance of an entity’s activities when determining charitable status was summarised in this way in [IPENZ at 572]:
It is clearly established that when one is considering the purpose or purposes for which an institution is established one must look first to its founding documents. In [Accountants], Richardson J said:
The ascertainment of the purposes for which a statutory body is established is essentially a matter of construction of the relevant constituting legislation.
The same applies to bodies established by non-legislative means. In Royal College of Surgeons v National Provincial Bank Ltd…Lord Normand said that the decision in that case depended primarily on the construction of the constituent documents of the Royal College and particularly the charter granted by King George III in 1800.
To the same effect is the decision of the Court of Appeal in Molloy v Commissioner of Inland Revenue…, but with the important additional proposition that where the constituting documents do not indicate with clarity the main or dominant objects of the body, reference may be made not only to the objects expressed therein but also to the activities of the body in question…In this respect reference can also be made to the speech of Lord Reid in the Royal College of Surgeons case…where His Lordship said:
“If there were anything to show that the affairs of the college had been so conducted that the advancement of the interests of its members had become one of its main purposes, it may be that this would disentitle the college from pleading that it is a charity, but I do not find anything of that kind.”
His Lordship was therefore very clearly of the view that the actual operations of the body concerned were material and the focus of the Court is not inevitably confined to the founding documents.
[85] Thus an entity’s activities were regarded as relevant only to the extent that the entity’s constituent documents were unclear as to its purpose or where there was evidence of activities by an entity that displaced or belied its stated charitable purpose.
[86] It seems unlikely that the enactment of s 18(3) was intended materially to change this position. In Re Greenpeace the Supreme Court said (at [14]) no more than that s 18(3) “makes clear” that the purposes of an entity “may be inferred from the activities it undertakes”. That seems wholly consistent with the dicta I have set out above. It is certainly not an indication that the Act was intended to wreak some fundamental change in approach or a move away from the fundamental “purposes” nature of the charities inquiry. [Emphasis added]
In other words, the position prior to the Charities Act was that an entity’s activities were relevant in construing an entity’s purposes only to the extent that the entity’s constituting documents were unclear as to its purposes, or where there was evidence of activities by an entity that displaced or belied its stated charitable purposes. As noted by Somers J, the exercise of considering activities was to be taken, not in substitution for a consideration of the stated objects but rather as part of that exercise. Ellis J helpfully clarified that neither section 18(3) of the Charities Act nor the comments of the Supreme Court in Greenpeace SC had displaced that position, or mandated a consideration of activities as an entirely separate means of ascertaining the purposes of the relevant entity. In particular, her Honour held that the Supreme Court’s comments were “certainly not an indication that the Act was intended to wreak some fundamental change in approach or a move away from the fundamental “purposes” nature of the charities inquiry”.
Following this helpful clarification by the High Court in FAAR, the position should have been considered settled. It is therefore not clear why, following the FAAR litigation, there was no discernible change in approach.[23]
How the approach of inferring unstated purposes from activities sits with the duty of governors of charitable entities to comply with the terms of their constituting document has never been explained. The law is very clear that members of the governing bodies of charities must comply with the terms of their charity’s constituting document (see for example sections 24 and 26 of the Trusts Act 2019 (Duty to act in accordance with terms of trust and Duty to act to further the permitted purpose of the trust in accordance with the terms of the trust), section 134 of the Companies Act 1993 (Directors to comply with Act and constitution) and clause 50 of the Exposure Draft Incorporated Societies Bill (Officers to comply with Act and constitution)). To act outside those terms in furtherance of an “unstated purpose” is prima facie a breach of duty and therefore unlawful. An “unlawful” use of the funds or resources of an entity constitutes “serious wrongdoing”, as that term is defined in section 4 of the Charities Act. Such consequences of inferring an unstated purpose from activities militate against its routine application, and at the very least demand fuller consideration as part of the process of clarifying how purposes are ascertained in a Charities Act context.
The issue is redolent of the “substance over form” debate that has exercised tax lawyers over many years. However, even in that context, the Court of Appeal has recently confirmed that taxpayers are entitled to be taxed on the basis of the legal arrangements actually entered into, rather than on the basis of “substance over form”. Only 2 exceptions are permitted: where the transaction is a sham, or where a statutory provision, such as the tax avoidance provisions of the income tax legislation, requires a different or broader approach.[24]
In other words, whether interpreting a contract, a statute or the constituting document of a charity, putting the stated terms of the document to one side, and holding it to have another meaning on the basis of extrinsic evidence, should be as unusual as a finding that the document is a sham. Yet, to the contrary, Charities Services and the Charities Board continue to infer unstated purposes from activities as a matter of routine, as though it is simply an alternative approach that may be used at will.
Impact in practice
The approach of inferring unstated purposes from activities has a significant impact in practice. Ideally, charities would be able to have confidence that, if they are acting in furtherance of their stated charitable purposes and otherwise in accordance with their constituting document and the general law, they are “swimming between the flags” and their charitable registration should not be at risk.
But the practice of inferring unstated purposes from activities results in a very subjective approach which means registered charities never have certainty as to what their purposes will be found to be. All too often, Charities Services “infers an unstated purpose” from activities, finds that purpose to be non-charitable, and non-ancillary, and then moves to deregister or decline registration to a charity. For example, in its 2018 decision again declining the application by Greenpeace of New Zealand Incorporated (“Greenpeace”) for charitable registration, the Charities Board inferred that Greenpeace had an “illegal purpose” on the basis of its activities. This finding was reached despite the absence of any such purpose in Greenpeace’s constituting document, and despite Greenpeace’s strong objections that it does not have, and has never had, any purpose aimed at breaking the law.[25] Fortunately, the Charities Board’s finding was overturned on appeal to the High Court,[26] and at least 2 other appeals are pending at the time of writing.[27] Nevertheless, for the vast majority of charities, the option of appealing a decision to the High Court under the Charities Act framework as it is currently structured, is simply beyond their reach. For such charities, the “shifting sands” approach of inferring unstated purposes from activities is having an unhelpful chilling effect that places unnecessary barriers in the way of much-needed charitable work. It also raises concerning implications for the rule of law.
Conclusion
Clarifying the correct legal approach to ascertaining a charity’s purposes, and in particular that the extrinsic evidence rule applies to the construction of the constituting documents of charities just as it does to the construction of statutes and contractual documents, would materially assist with alleviating pressure on charitable and taxpayer resources that are currently being expended unduly due to uncertainty over this question. It would also remove a significant barrier that is frustrating, rather than facilitating, charitable work.[28]
Post-script
The writer is the recipient of the New Zealand Law Foundation International Research Fellowship, undertaking research into the question “What does a world-leading framework of charities law look like?” with a report due by September 2021. As part of the research, a co-design “sprint” workshop, facilitated by Mele Wendt MNZM from the Centre for Social Impact, will be held on 11-12 March 2021, focusing on what should be the definition of charitable purpose in contemporary Aotearoa New Zealand. For more information, please visit the “workshops” page at: www.charitieslawreform.nz.
Legalwise is also holding a webinar Charities and Not-for-profits: critical updates, on Friday 26 February 2021 1.30pm-4.45pm: click here.
We look forward to seeing you there!
[1] Hon Justice Stephen Kós QC, President of the Court of Appeal of New Zealand, keynote address to the Charity Law, Accounting and Regulation Conference, Wellington, 4 November 2020, entitled “Murky waters, muddled thinking: Charities and Politics”, at [33], see: https://www.courtsofnz.govt.nz/assets/speechpapers/murky-waters-muddled-thinking-charities-and-politics.pdf.
[2] See the discussion in Advocacy by charities: what is the question? Canadian Journal of Comparative and Contemporary Law Vol 6 No 1 2020, p1.
[3] See Latimer v Commissioner of Inland Revenue [2004] 3 NZLR 157 (PC) at [30].
[4] Latimer v Commissioner of Inland Revenue [2002] 1 NZLR 535 (HC) at [67]-[74], referring in particular to Institution of Professional Engineers New Zealand Inc v Commissioner of Inland Revenue [1992] 1 NZLR 570 (HC) at 573.
[5] Charities Bill 108-2 (Select Committee report) at 4.
[6] Latimer v Commissioner of Inland Revenue [2004] 3 NZLR 157 (PC) at [1] and [29].
[7] On appeal, the Court of Appeal considered that the Judge had not erred in this respect but also looked to the Treaty of Waitangi Act 1975 and the Waitangi Tribunal process in order to ensure that the trust deed and its purposes could be properly understood: Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA) at [36].
[8] Latimer v Commissioner of Inland Revenue [2004] 3 NZLR 157 (PC) at [1] and [29].
[9] Family First New Zealand v Attorney-General [2020] NZCA 366 at [87].
[10] https://www.cnbc.com/2015/01/13/empty-mansions-in-aspen-cause-hollowing-out.html
[11] Commissioner of Inland Revenue v Medical Council of New Zealand [1997] 2 NZLR 297 (CA) at 318 and 319.
[12] See the discussion in Charity regulation in New Zealand: history and where to now, Australian and New Zealand Third Sector Research, Third Sector Review, Vol 26 issue 2, 2020, p28.
[13] Charities Registration Board, Decision No 2015-3, 2 November 2015.
[14] See Income Tax Act (RSC, 1985, c1 (5th Supp)) (Canada), section 149.1.
[15] As noted by the Supreme Court of Canada in Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue, [1999] 1 SCR 10 at para 152: “the character of an activity is at best ambiguous; for example, writing a letter to solicit donations for a dance school might well be considered charitable, but the very same activity might lose its charitable character if the donations were to go to a group disseminating hate literature. In other words, it is really the purpose in furtherance of which an activity is carried out, and not the character of the activity itself, that determines whether or not it is of a charitable nature. See also the discussion in “The Myth of Charitable Activities” (2014) NZLJ at 304.
[16] See the Report by the Working Party on Registration, Reporting and Monitoring of Charities (28 February 2002) at 21-2; Report to the Minister of Finance and the Minister of Social Welfare by the Working Party on Charities and Sporting Bodies (November 1989) at iv-v, 10, 21, 63, 67; Tax and Charities: A Government Discussion Document on Taxation Issues Relating to Charities and Non-profit Bodies (Wellington: Inland Revenue Department, 2001) at para 8.7. See also Re The Foundation for Anti-Aging Research and The Foundation for Reversal of Solid State Hypothermia (2016) 23 PRNZ 726 at [88] and Myles McGregor-Lowndes & Bob Wyatt, Regulating Charities: The Inside Story (New York: Routledge, 2017), ch 10.
[17] Charitable trusts in particular were considered to be “uniquely free from supervision”: Hutchinson, CP, QC OBE, February 1979, Property Law Reform and Equity Committee Report on the Charitable Trusts Act 1957 at 2.
[18] Re Greenpeace of New Zealand Inc [2015] 1 NZLR 169 (SC) at [14].
[19] Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA) at 693 per Somers J.
[20] Re The Foundation for Anti-Aging Research and The Foundation for Reversal of Solid State Hypothermia (2016) 23 PRNZ 726 at [58]-[62] and [65]-[67].
[21] Re The Foundation for Anti-Aging Research and The Foundation for Reversal of Solid State Hypothermia (2016) 23 PRNZ 726 at [80].
[22] Re The Foundation for Anti-Aging Research and The Foundation for Reversal of Solid State Hypothermia (2016) 23 PRNZ 726 at [82]-[86].
[23] See the discussion in ACPNS Legal Case Note Series: 2020-109 Greenpeace of New Zealand Inc v Charities Registration Board at page 8.
[24] Church of Jesus Christ of Latter-Day Saints Trust Board v Commissioner of Inland Revenue [2020] NZCA 143 (6 May 2020) at [26]-[27], [52]-[54] and [64]-[69].
[25] Charities Registration Board Decision No 2018-1, paras 85-98.
[26] Greenpeace of New Zealand Incorporated v Charities Registration Board [2020] NZHC 1999 (10 August 2020) at [142] per Mallon J.
[27] As at the time of writing, the Better Public Media Trust is appealing the decision of the High Court in Better Public Media Trust v Attorney-General [2020] NZHC 350 (2 March 2020) to the Court of Appeal, and the Attorney-General has been granted leave to appeal the decision of the Court of Appeal in Family First New Zealand v Attorney-General [2020] NZCA 366 (27 August 2020) to the Supreme Court.
[28] National Council of Women of New Zealand Incorporated v Charities Registration Board (2014) 26 NZTC 21,116 at [53] per Dobson J.
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 director of the Charity Law Association of Australia and New Zealand, a member of Charities Services’ Sector User 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 Regulating Charities: the Inside Story (Routledge, 2017), Corporate Governance – A Practical Handbook (2ed) (Wolters Kluwer, 2016), and Balancing Work and Life: a Practical Guide for Lawyers (LexisNexis, 2015). 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 to regain their charitable registration. Examples of Sue’s specific experience can be found here.
Contact Sue at susan.barker@charitieslaw.co or connect via LinkedIn 
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