Better Public Media Trust v Attorney-General
| Jurisdiction | New Zealand |
| Judge | Collins J |
| Judgment Date | 09 November 2023 |
| Neutral Citation | [2023] NZCA 553 |
| Court | Court of Appeal |
| Docket Number | CA171/2020 |
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Courtney, Collins and Katz JJ
CA171/2020
E D Nilsson and S J Humphrey for Appellant
D L Harris and S Cvitanovich for Respondent
Charities — appeal against refusal to be registered as a charity — purpose was to advance public media in New Zealand — meaning of “charitable purpose” — “four heads of charity” — ancillary non-charitable purposes — Charities Act 2005 — Charitable Uses Act 1601 (UK) — Statute of Elizabeth
The appeal was allowed. The Trust should now be registered as a charity under the CA.
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A The application for leave to adduce further evidence is granted.
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B The appeal is allowed.
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C The Better Public Media Trust should now be registered as a charity under the Charities Act 2005 with effect from the date of its application.
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D We make no order as to costs but the appellant is entitled to an order that its reasonable disbursements be paid by the Attorney-General.
(Given by Collins J)
Better Public Media Trust (the Trust) applied to be registered as a charity under the Charities Act 2005 (the Act). Its application was declined by the Charities Registration Board (the Board), 1 and an appeal from the Board's decision was dismissed by the High Court. 2 The Trust appeals against the High Court judgment.
The key issue raised by the appeal may be summarised in the following question:
Did the High Court err when it concluded the Trust did not qualify for registration as a charity under the fourth head of charitable purpose set out in s 5(1) of the Act because its purposes were not “beneficial to the community”? 3
We explain the meaning of charitable purpose under the Act at [27]–[55].
Three interconnected questions have been identified by the parties for our consideration. Those questions ask whether the High Court erred:
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(a) when stating the Trust's purposes;
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(b) when identifying the relevant principles governing whether or not the Trust purposes are charitable; and
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(c) in applying the legal principles concerning charitable purposes to the facts of this case.
While the agreed questions provide a useful framework, we have not found it necessary to deal with every criticism from the Trust about the High Court judgment. This appeal is conducted by way of a rehearing. 4 We are required to assess the facts and apply the relevant law to those facts. 5 In this case, that involves us determining whether or not the Trust's advocacy role is beneficial to the community and whether or not it qualifies as a charity by comparing its purposes with those of recognised charities. 6 This is not a case in which the High Court's factual findings were reached after seeing and hearing witnesses. In addition, we have had the benefit of further evidence from that presented in the High Court. The evidence (two affidavits of Myles Thomas, the Chairman of the Trust) has the purpose of updating this Court on the Trust's recent activities. We have decided to allow that evidence because it is relevant and cogent. Allowing that evidence is consistent with the interests of justice. We are therefore in a stronger position than the High Court Judge to fully assess the evidence.
The Trust was incorporated in 2013. It was formed following two campaigns, one called “Save RNZ”, which opposed the commercialisation of Radio New Zealand, and the other, called “Save TVNZ 7”, which advocated against the closure of Television New Zealand Channel 7.
The purposes of the Trust have evolved since the adoption of its first deed on 18 September 2015. Clauses 3.1 to 3.6 of the most recent iteration of the trust deed, dated 2 February 2018, describe the Trust's purposes in the following way:
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3.1 To advance public media in New Zealand.
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3.2 To promote the role of public media in educating, informing and entertaining all New Zealanders.
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3.3 To educate New Zealanders and promote informed debate about public media issues.
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3.4 To support improved access to funding, operating conditions and platforms of distribution for use by public media providers.
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3.5 To represent and advance the interests of media audiences.
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3.6 To undertake other activities that are likely to further the charitable purposes of the Trust.
“Public Media” is defined in cl 2.4 of the trust deed as:
… public interest, non-profit, publicly-owned, independent or non-commercial media (including television channels, television programmes, radio stations, radio programmes, news media, social media, websites, applications, games, software, and other online or communications media).
We will analyse the definition of “public media” at [74]–[77].
Mr Thomas, the Chairman of the Trust, has explained the Trust comprises more than 2,000 members who pay an annual membership fee of $20–$40. The Trust's directors include prominent media academics and media law experts.
Mr Thomas has filed an updating affidavit, which elaborates upon the activities of the Trust from the time the Trust applied for registration as a charity on 12 October 2015. Those activities include:
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(a) holding public lectures which focus upon public media topics;
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(b) making submissions to government and other bodies about public media issues;
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(c) providing commentary in the media about public media topics;
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(d) organising a competition for secondary school students with the aim of engaging students in public media issues; and
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(e) commissioning research into public media topics.
We shall:
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(a) explain the Trust's activities;
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(b) summarise the key principles that govern the registration of charitable entities and, in particular, those entities that undertake advocacy;
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(c) summarise the decision of the Board and the High Court judgment;
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(d) analyse the Trust's purposes and the means and manner by which it achieves those purposes;
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(e) compare the Trust's purposes with other organisations that have acquired charitable status; and
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(f) explain our conclusions.
Section 18(3) of the Act provides that the Trust's activities are relevant to considering its charitable status. 7 Evidence of an applicant's activities are not limited to situations where there is doubt or ambiguity arising from an entity's constitutional documents. 8
Dr Peter Thompson is a former Chairman of the Trust and is currently one of the Trust's directors. He is an Associate Professor of Media and Communication at Te Herenga Waka — Victoria University of Wellington and he has written extensively about the Trust's purposes and activities. In an affidavit filed in support of the Trust's application for registration, Dr Thompson described “ public service media”, which the Trust has since renamed as public media: 9
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11. The traditional concept of ‘ public service’ media [PSM] may include variations in regulatory, funding and institutional arrangements both in respect to individual media organisations (e.g. in Radio New Zealand and M[ā]ori Television Service in New Zealand, or the BBC and Channel 4 in the UK) and the wider media sector model (e.g. in New Zealand there are no public service requirements on private/commercial broadcasters whereas in the UK, the ITV companies also have some public service obligations).
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12. What the term ‘ public service’ means across all these cases is a commitment to serving the broad interests of the public as citizens, not only as consumers. This generally includes a commitment to a universally-accessible service, free at the point of reception, provision of a diverse range of content (including informative and educational genres) which addresses the needs of a wide range of audiences (including demographic, ethnic/indigenous and regional minorities).
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13. PSM also offer benefits at the level of the media ecology. These include setting high standards of programming, encouraging competition for quality and innovation (not just for ratings and revenue), developing and sustaining talent, and investing in productive capacity. PSM also compensate for market failures which are liable to arise in a primarily commercial media system where the drive to optimise ratings and revenues leads to an exclusive focus on the most profitable content and audience demographics, along with a disincentive to maintain a full range of high quality local content (e.g. the cost of producing a local drama can be ten times greater than licensing one from overseas).
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14. In addition, PSM support several functions at the level of the social system. This includes reflecting/validating cultural identity and encouraging empathy across different communities, and also facilitating democratic participation by providing citizens with the information needed to make sense of social, political and economic issues, recognise what is in their best interests (either as individuals or as civil society), and exercise their rights as franchised voters.
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15. The concept of public service has historically been associated with radio and television broadcasting. However, the development of digital media technologies over the past two decades has seen the increasing convergence of audio-visual and print media along with new modes of content distribution (e.g. online streaming) and reception (e.g. mobile devices). For instance, Radio New Zealand has expanded its services over the Internet, including mobile apps, and is currently planning to develop a stronger television presence. For this reason, the term public service media (or just ‘public media’) is preferred.
In his updating affidavit, Mr Thomas has described in further detail the activities of the Trust. We now turn to discuss some examples of the...
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