NZ Family Planning Charitiable - Right to Life NOT

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).

Advocacy

16. Some organisations carry out advocacy as a way of achieving their purposes. Advocacy is a

broad term that covers a wide range of activities, such as generating debate or raising

awareness about a specific issue, lobbying decision makers, and making submissions.

17. Advocacy is charitable when it is clearly connected to an organisation’s charitable purpose. In some cases, an organisation’s advocacy may not be clearly connected to its charitable purpose. In these cases, the organisation would need to provide information showing how its advocacy helps it to achieve a charitable purpose.

2 Family First SC at [66].

3 Unreported, HC WN CIV-2010285-924 28 February 2011

4 1997 2 NZLR 297

Assessing advocacy purposes

18. To assess if an organisation’s advocacy is charitable, we apply the Greenpeace SC5 test, affirmed by Family First SC,6 which considers:

• The organisation’s overall mission or goal. The end goal must be charitable by analogy to a previously accepted charitable purpose of public benefit. In some cases, the end goal will be clearly charitable.

• How the organisation aims to achieve its goal. The views promote to achieve the end goal must either be a clear means to achieve a charitable end goal or demonstrably capable of achieving the end goal. Competing views or interests will not negative the finding of a public benefit,7 however, if the views promoted fall outside the area of advocacy for the end goal it will not be charitable.8

• The practical steps the organisation carries out to achieve its goal. The methods and practical steps can include petitions, publishing reports and submissions to Government. An illegal purpose prevents registration as a charity.

19. An organisation may still be able to be registered as a charity, even if some of its advocacy is not charitable. In these cases, the organisation’s non-charitable advocacy must be ancillary. A purpose is ancillary if it is a small part of what the organisation does and is closely connected to its charitable purposes.

The Society’s stated purposes

20. The Society’s stated purposes are set out at clause 8.2 of its rules document (dated 7 December 2018):

‘8.2 Charitable purpose: the charitable purposes of the Association are to promote health, to advance education, and to further other purpose beneficial to the community, including by:

a) Enhancing health and health care and facilitating the provision of and access to health care;

b) Improving the health status of people, including through the reduction of disparities for Māori and other ethnic groups, the reduction of barriers to the timely access of appropriate health services, and by promoting a positive view of sexuality, informed choice, equitable access to accurate, culturally responsive health information, quality reproductive health services which are appropriate and affordable for all;

c) Being a leader on the development of good sexual and reproductive health for all, to achieve a healthier society;

5 Greenpeace SC at [76].

6 Family First SC at [125].

7 Greenpeace HC applying the test in Greenpeace SC at [85].

8 Family First SC at [148].

d) Stimulating and undertaking research about sexual and reproductive health including the collection and use of data, and collecting and disseminating the findings of that research;

e) Promoting and providing training for people employed or involved in the areas of sexual and reproductive health, in terms of clinical, education, social, and community work within the objectives of the association; and

f) Furthering such other incidental purposes as may be considered reasonably necessary or incidental to the carrying out of the above charitable purposes.’

21. It is noted that clause 8.4 states:

‘Severance of any non-charitable purpose: all of the Association’s purposes are strictly charitable according to New Zealand law, and any purposes which do not qualify as charitable shall be deemed to have been deleted from this constitution.’

22. It is considered that the Society’s stated purposes at clause 8.2 (a) – (f) are capable of being charitable under the fourth head, other purposes beneficial to the community, for the promotion of health, and for the advancement of education.

23. Specifically:

• Clause 8.2(a) indicates that the Society will be ‘facilitating the provision and access to

health care.’ This is charitable under the fourth head, for the promotion of health.

• Clause 8.2 (b) indicates that the Society will be ‘improving the health status of people, including through the reduction of disparities for Māori and other ethnic groups, the reduction of barriers to the timely access of appropriate health services, and by promoting a positive view of sexuality, informed choice, equitable access to accurate, culturally responsive health information, quality reproductive health services which are appropriate and affordable for all.’ This is capable of being charitable for the promotion of health, including mental health.

• Clause 8.2(c) indicates that the Society intends ‘being a leader on the development of good sexual and reproductive health for all, to achieve a healthier society.’ This is aspirational and is capable of being charitable for the promotion of health.

• Clause 8.2(d) indicates that the Society will be ‘stimulating and undertaking research about sexual and reproductive health including the collection and use of data and disseminating the finding of that research.’ This is capable of being charitable for the advancement of education, and for the promotion of health.

• Clause 8.2(e) indicates that the Society will be ‘promoting and providing training of people employed or involved in the areas of sexual reproductive health in clinical education social and community work.’ This is capable of being charitable for the promotion of health. As noted above, 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 (Medical Council).

 Clause 8.2(e) indicates that the Society will be ‘Furthering such other incidental

purposes as may be considered reasonably necessary or incidental to the carrying out of the above charitable purposes.’ This is considered to be similar to a power.

The Society’s activities

24. The Society provides clinics on sexual and reproductive health in New Zealand. The Society’s website states (Home - Family Planning):

‘At our clinics we can help with contraception, STI testing and treatment, cervical screening, pregnancy testing, abortion advice, PMS, menopause, HPV vaccinations, and advice for other sexual and reproductive health issues including what to do if you've had unprotected sex.’

25. The Society’s clinics are located throughout New Zealand and can be accessed through the Society’s website (Clinics - Family Planning). For example, the Society has a clinic at Suite 411, Level 4, North City Shopping Centre, 2 Titahi Bay Road, Porirua 5020 which is open during the day on Tuesday – Saturday (Porirua Clinic - Family Planning).

26. The Society’s website states (Clinics - Family Planning):

‘We want everyone to be able to make informed choices about their sexual and reproductive health. Anyone can come to one of our clinics for an appointment with our nurses and doctors. Your visit will be confidential, and if you’re under 22, your visit will be free.’

27. The Society provides information and advice on its website (Advice - Family Planning) on topics such as: Contraception; Sexually Transmissible Infections; Pregnancy; Abortion; Keeping Safe; Sexual Orientation and Gender Identity; Relationships; Genital Health; Understand Your Body; Reproductive Cancers and Menopause.

28. The Society provides resources on its website on topics related to sexual and reproductive health (Resources (familyplanning.org.nz), for example ‘Abortion – what you Need to Know’; ‘Alcohol Sex and Hauora’; ‘All About Growing Up’; ‘Contraception Youth Poster.’

29. The Society also sells a limited range of health care products on its website (Products (familyplanning.org.nz).

30. The Society is a specialist provider of clinical training for nurses, midwives and doctors and provides online and in-person courses that cover cervical screening, contraception, STIs and general sexual and reproductive health (Courses - Family Planning). For example, the National Contraception Training Service ‘Contraceptive Counselling 2022’; and Contraception and Sexual Health ‘Family Planning Certificate in Contraception and Sexual Health 2022.’

31. The Society provides ‘health promotion’ courses that ‘cover all aspects of sexual and reproductive health and relationships for teachers, support staff, guidance counsellors, school nurses, carers, social workers, and others working with young people’ (Courses - Family Planning).

32. The Society creates professional development courses for teachers (2019-annual-report.pdf (familyplanning.org.nz); (familyplanningannualreport-2020-2021.pdf) and publishes teaching resources on its website (Resources (familyplanning.org.nz) for example ‘Navigating the journey: Te takahi i te ara Whakaakoranga hōkakatanga Year 1 and 2’. The Society also provides resources for use in schools, for example ‘Navigating the Journey: Relationships and Sexuality Education for Students in Year 10/ Level 6.’

33. The Society carries out international health projects, for example to reduce unplanned pregnancies and sexually transmitted infections among Ni-Vanuatu people; to deliver practical IUD training to Kiribati Family Health Association and Ministry of Health nurses in Kiribati; Sexual and Reproductive Health in Emergencies Programme to improve access to life saving sexual and reproductive health services in emergencies in Kiribati Cook Islands and Tuvalu (2019-annual-report.pdf (familyplanning.org.nz));

34. The Society undertakes research and publishes articles in journals. For example, the Society’s International Programmes staff had two pieces of research published: Objecting to Objectivity: Reflecting on Evaluation in Vanuatu explored issues related to the evaluation of programmes in Vanuatu by donors funding the programmes. The research was published in the Journal of Pacific Studies. Another staff member was part of a research team comparing the costs of an abortion from a health provider to the cost of treatments of complications from unsafe abortion. The article was published in the ‘Reproductive Health Matters’ journal (2019-annual-report.pdf (familyplanning.org.nz).

35. It is noted that the income and expenditure in the Family Planning Annual Reports 2018-2019 and 2020-2021 appears consistent with the Society’s activities. The Society’s annual reports also show that the Society receives a significant amount of funding from government contracts to carry out its activities.

Advocacy

36. The Society carries out advocacy in the area of sexual and reproductive health care.

37. The Society has made submissions to the government, submissions on legislation, media releases, posted articles on its website, co-hosted panel discussions and met with cabinet ministers.

38. The Society has advocated for abortion law reform including:

- submissions to the ‘Abortion Legislation Committee on the Abortion Legislation Bill.’ The

submission called for law change to enable abortion to be provided based on medical best practice and to support more equitable access to abortion (Submission to Abortion Legislation Committee (familyplanning.org.nz))

- publishing a fact sheet on ‘Abortion Law reform’ on its website (abortion-law-

reformwhat-you-need-to-knowaugust2019.pdf (familyplanning.org.nz)

- submissions on the ‘Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill’ and appearing before the Select Committee to speak to the legislation (familyplanningannualreport-2020-2021.pdf).

- organising meetings with a number of cabinet ministers across the year to state their

views (familyplanningannualreport-2020-2021.pdf).

- media release ‘Law Reform is Good News/ Bad News Story’ dated August 6 2019 (Abortion law reform (familyplanning.org.nz).

- article on the Society’s website ‘Overturing Roe v Wade “A Sad Day”’ dated 25 June 2022 (Overturning Roe v Wade "a sad day" (familyplanning.org.nz).

- media release ‘Family Planning and ASMS Fully Behind Integrated Abortion Care in

Aotearoa’ dated June 27 2022 (Family Planning and ASMS fully behind fully integrated abortion care in Aotearoa)

- article on the Society’s website ‘Harnessing Opportunities and Ensuring Rights and

Choices for All’ dated 11 July 2022 (Harnessing opportunities and ensuring rights and choices for all (familyplanning.org.nz))

- co-hosting panel discussion on abortion law reform with the New Zealand Women’s Law Journal – Te Aho Kawe Kaupapa Ture a ngā Wahine (2019-annual-report.pdf (familyplanning.org.nz).

39. The Society has advocated on other health care issues including:

- submissions on the establishment of Health New Zealand, the Māori Health Authority and formalising the role and purpose of iwi-Māori Partnership Boards dated 20 December 2021 (Family Planning supports health system reform)

- article on the Society’s website ‘Call to Reconsider Fast-tracked Residence Pathway for

Nurses’ dated May 12 2022 (Call to reconsider fast-tracked residence pathway for nurses (familyplanning.org.nz))

- submissions on the ‘Surrogacy Bill’: ‘Family Planning Submission on Improving

Arrangements for Surrogacy Bill’ dated 27 July 2022 (Submission - Improving Arrangements for Surrogacy Bill (familyplanning.org.nz))

- endorsement of letter calling for urgent Government action to prevent the escalation of

Monkeypox (MPX) cases in Aotearoa New Zealand dated August 8 2022 (Letter of Endorsement Monkeypox (familyplanning.org.nz)

- submissions to the Health and Disability System Review (2019-annual-report.pdf

(familyplanning.org.nz))

Assessment of whether the Society’s activities are consistent or supportive of charitable purposes

40. It is considered that the Society’s activities are supportive of charitable purposes under the fourth head of charity, other purposes beneficial to the community - for the promotion of health, and for the advancement of education.

41. The Society provides sexual and reproductive health services for the public. It does this through the provision of clinics throughout New Zealand. It provides resources and advice on sexual and reproductive health on its website.

42. The Society also carries out international health care programmes on sexual and reproductive health in the Pacific. These activities are considered to be supportive of charitable purposes for the promotion of health.

43. The Society provides resources and clinical training for the medical profession in New Zealand, professional development courses for teachers, develops teaching resources for schools and undertakes research which is published in journals. These activities are considered to be supportive of charitable purposes for the promotion of health, and for the advancement of education.

The Society’s advocacy

44. As noted above, when Charities Services is assessing whether a political or advocacy purpose is charitable, it must consider the end goals the organisation seeks to achieve, the policy, views or means the organisation promotes, and the particular methods or manner the organisation uses to achieve the end goals.

End goal

45. The Society’s end goal is the promotion of public health. The Society is seeking to provide appropriate sexual and reproductive health care for all groups in New Zealand. It is also providing sexual and reproductive health care in the Pacific.

Policy views or means

46. The Society is carrying out its advocacy in areas related to sexual and reproductive health, for example advocating for abortion law reform to provide safe and accessible abortions and supporting the open letter to the government on the urgent need to prevent the escalation of Monkeypox.

47. The Society is also carrying out advocacy in relation to the New Zealand health care system, for example submissions to the Health and Disability System Review, submissions on the establishment of Health New Zealand the Māori Health Authority and supporting the call to re-consider fast-tracked resident pathway for nurses.

48. It is considered that advocating for increased access to sexual and reproductive health and advocating for a more a more accessible health system for minority groups such as the disabled and Māori are clearly connected to a purpose to promote health for a public benefit.

Methods or manner

49. The Society has made submissions to government, submissions on legislation, media releases, posted articles on its website, co-hosted panel discussions and met with cabinet members. It is noted that the Society is not involved in any illegal activities.

It is considered that the Society’s advocacy is clearly connected to the Society’s charitable purposes to promote public health, through the provision of appropriate sexual and reproductive health care and is charitable.

Are any non-charitable purposes ancillary?

50. Given that the Society’s advocacy has been found to be charitable, it is not necessary to consider if it is ancillary to a charitable purpose. However, for completeness, I have considered below whether the Society’s advocacy, were it found not to be charitable, would be ancillary to a charitable purpose.

51. Based on the information available on the Society’s current and planned activities, it is considered that the Society’s main focus is to promote public health through the provision of health care in the area of sexual and reproductive health. This is carried out through the provision of clinics, information and advice on its website, training for health care professions, the provision of teaching resources for schools, international health care programmes, and surveys and medical research which is published in journals.

52. The Society’s advocacy is considered to be a small part of the Societies overall activities and to be closely connected to its charitable purpose of facilitating the provision of and access to sexual and reproductive health care.

53. Therefore, the Society’s advocacy, if it was not found to be charitable, would be considered ancillary to a charitable purpose. As discussed above, however, we consider that the Society’s advocacy is charitable.

Risk assessment

54. We consider that the continued registration of this entity poses a low risk as it is clearly furthering charitable purposes under the fourth head, in seeking to promote public health in New Zealand and the Pacific.

Summary

55. Charities Services considers the Society continues to advance charitable purposes under the fourth head, other purposes beneficial to the community, for the promotion of health. The Society is providing sexual and reproductive health services for the public in New Zealand and the Pacific.

56. The Society’s advocacy is closely connected to its charitable purposes and is charitable. In addition, because its advocacy is a small part of what the organisation does and is closely connected to its charitable purposes it is found to be ancillary to a charitable purpose.

Decision

57. Charities Services considers the Society advances charitable purposes, therefore, continues to qualify for registration. We consider the charitable purpose review can be closed with no further action.

Analysis completed by Sarah Shallcrass, Analyst, with senior review from Lucy Beeler, Team Leader.