8 December 2022
Background
1. This is a charitable purpose review is for New Zealand Family Planning Association Incorporated (CC11104) (the Society).
2. Charities Services received a complaint on 22 October 2022 alleging that the Society has breached the Charities Act 2005 by actively campaigning to support legislation.
3. The issue is whether the Society’s advocacy is clearly connected to its charitable purposes and/or is carrying out as a way of achieving its purposes.
4. If the Society’s advocacy is not clearly connected to its charitable purpose, the issue is whether it is ancillary to the Society’s charitable purposes.
Framework for assessment
5. The Supreme Court in Re Greenpeace New Zealand Incorporated (Greenpeace SC) held that the purposes of an entity may be expressed in its stated purposes or inferred from its activities, as s18(3) of the Charities Act 2005 (the Act) makes clear.
6. The Court in Attorney-General v Family First (Family First SC) affirmed its Greenpeace SC decision, holding that s18(3) makes it clear that a decision-maker for both a registration application and deregistration decision must have regard to an organisation’s activities and proposed activities, and this is not limited to cases where the purposes are ambiguous or potentially not representative of the true purposes of the entity.
7. The Board’s approach to assessing charitable purpose follows the Supreme Court’s decisions, which considers:
• Whether the stated purposes are capable of being charitable;
• whether activities are consistent with, or supportive of, a charitable purpose, and if they are not;
• whether any non-charitable purpose can be said to be merely ancillary to an identified charitable purpose.
The promotion of health
8. A purpose to promote health, including mental health, can be charitable under the fourth head - other purposes beneficial to the community. To be charitable under this category, the organisation's purpose must be very similar to the spirit and intent of those purposes listed in the Preamble to the Statute of Elizabeth or very similar to a charitable purpose as decided by the courts, and beneficial to the community.
9. In Auckland Medical Aid Trust v Commissioner of Inland Revenue1 (Auckland Medical Aid) Chilwell J wrote that the provision of hospital, clinics and related services was charitable because such a purpose was analogous to the phrase “the relief of the impotent” in the Statute of Elizabeth I (p 390 line 45).
1 [1979] 1 NZLR 673 at 390.
10. Chilwell J considered that a general dispensary, a type of clinic that provided for the occasional treatment of outpatients, was similar to a hospital and should be charitable.106 Consequently, in Auckland Medical Aid Trust v CIR he concluded that the trust was charitable, although it limited the provision of medical services to the control of the human reproductive process. This service provided public benefit because it was a purpose that was beneficial, available to a sufficient section of the public and enforceable by the Court.
Advancement of education
11. A purpose to advance education can be charitable. To be charitable under this category, the organisation's purpose must provide some form of education; and ensure learning is passed on to others. The modern concept of "education" covers formal education, training and research in specific areas of study, and expertise. It also includes less formal education in the development of individual capabilities, competencies, skills and understanding. It does not include propagandist or political activities.
12. To "advance" education, learning must be passed on to others. If research is being conducted, to fit within the "advancement of education" head of charity, it must be carried out in an objective and impartial way and the useful results made available, or accessible, to the public.
13. The Supreme Court in Family First SC held that promoting a viewpoint will not disqualify the entity from having an educational purpose, however, the purpose must genuinely be to educate. The question is whether the entity has crossed the line between educating about the existence of a viewpoint and hoping that people may reach their own views on the merits, and actively seeking to persuade, indoctrinate or convert people to the entity’s views.2
Professional development
14. If an association exists mainly to advance the interests of its members, then it will not be charitable even if carrying out its objects results in benefit to the community (Re New Zealand Computer Society Inc3).
15. Where the professional development is in health it has been recognised that there is a clear benefit to the public in promoting high standards of medical knowledge and corresponding quality of care (Commissioner of Inland Revenue v Medical Council of New Zealand4) (Medical Council).