Greenpeace of New Zealand Incorporated Hc Wn

JurisdictionNew Zealand
JudgeHeath J
Judgment Date06 May 2011
Neutral Citation[2011] NZHC 77
Docket NumberCIV 2010-485-829
CourtHigh Court
Date06 May 2011

[2011] NZHC 77

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-829

BETWEEN

IN THE MATTER OF an appeal from a decision of the Charities Commission under the Charities Act 2005

Greenpeace of New Zealand Incorporated
Appellant
Counsel:

D M Salmon and K L J Simcock for Appellant

P Gunn for Charities Commission

JUDGMENT OF Heath J

Contents

Introduction

[1]

The appeal

[4]

The Commission's decision

[8]

Competing submissions

(a) Submissions for Greenpeace

[18]

(b) Submissions for Commission

[21]

A preliminary issue: should further evidence be allowed on appeal?

[27]

Analysis

(a) Does the pre-existing law on “charitable purposes” remain relevant?

[34]

(b) The scope of a “charitable purpose”

[41]

(c) Was the Commission wrong?

(i) The appellate approach

[60]

(ii) Political objectives

[61]

Result

[77]

Introduction
1

Greenpeace of New Zealand Incorporated (Greenpeace) is an incorporated society through which the wider Greenpeace organisation operates in New Zealand. In the most general terms, Greenpeace's object is to promote a philosophy that encompasses protection and preservation of nature and the environment.

2

Before enactment of the Charities Act 2005 (the Act), Greenpeace enjoyed charitable status, under a regime administered through the Commissioner of Inland Revenue. When the Act came into force, those organisations that had previously held charitable status were obliged to apply to the Charities Commission (the Commission) for registration as a “charitable entity”. 1

3

Greenpeace applied to the Commission for registration. The Commission (Messrs Ashton and Ayres) declined the application, holding that Greenpeace was not a society or institution that had been established and maintained exclusively for charitable purposes. 2 Greenpeace appeals against that decision.

The appeal
4

Greenpeace's application fell to be determined in relation to those provisions of the Act that deal with a “society”. 3 It was necessary for Greenpeace to persuade the Commission that it had been established and was maintained “exclusively for charitable purposes” 4 and was not carried on for the private pecuniary profit of any individual. 5 No issue arises under the private pecuniary profit head.

5

If Greenpeace could not establish that it had exclusively charitable purposes registration could still be effected if a non-charitable purpose was “merely ancillary to a charitable purpose of the … society”. 6 A non-charitable purpose is regarded as ancillary if it were both “ancillary, secondary, subordinate, or incidental to a charitable purpose” and “not an independent purpose” of the society. 7

6

The appeal point was framed as whether a modern law of charities ought to exclude from registration societies that promote charitable objectives through the use of advocacy, interacting with the executive, legislative and judicial branches of government.

7

Since judgment was reserved on 11 November 2010, there have been two developments on which I have sought and obtained further submissions. The first was the judgment of the High Court of Australia, delivered on 1 December 2010, in Aid/Watch Incorporated v Commissioner of Taxation. 8 By a majority, 9 a similar question arising under Australian law was answered in terms favourable to Greenpeace. 10 The second was a judgment of this Court in Re Draco Foundation (NZ) Charitable Trust. 11 In that case, Ronald Young J declined to apply the majority

judgment in Aid/Watch, holding that this Court was bound to apply the decision of the House of Lords in Bowman v Secular Society Ltd, 12 which remained good law in New Zealand. 13
The Commission's decision
8

The application for registration was filed electronically on 25 June 2008. In determining an application, the Commission must consider the applicant's objects and other information relevant to consideration of whether the entity has been established and is maintained exclusively for charitable purposes. 14

9

The term “charitable purpose” is defined by s 5 of the Act:

5 Meaning of charitable purpose and effect of ancillary non-charitable purpose

  • (1) In this Act, unless the context otherwise requires, charitable purpose includes every charitable purpose, whether it relates to the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community.

  • ….

  • (3) To avoid doubt, if the purposes of a trust, society, or an institution include a non-charitable purpose (for example, advocacy) that is merely ancillary to a charitable purpose of the trust, society, or institution, the presence of that non-charitable purpose does not prevent the trustees of the trust, the society, or the institution from qualifying for registration as a charitable entity.

  • (4) For the purposes of subsection (3), a non-charitable purpose is ancillary to a charitable purpose of the trust, society, or institution if the non-charitable purpose is-

    • (a) ancillary, secondary, subordinate, or incidental to a charitable purpose of the trust, society, or institution; and

    • (b) not an independent purpose of the trust, society, or institution.

10

The Commission accepted that most of the purposes for which Greenpeace was maintained were charitable. The reason why the application for registration was declined related to the means by which Greenpeace promoted its philosophy, 15 both in a general and specific sense. In particular, the use of political advocacy assumed some importance, given a line of authority that followed Bowman.

11

Before giving its decision, the Commission sought further information (among other things) about the way in which Greenpeace promoted disarmament and peace, as well as the content of programmes it undertook. In addition, inquiries were made about the status of associated entities known as Greenpeace New Zealand Charitable Trust and the Stichting Greenpeace Council. Extensive information was supplied by Greenpeace. That was taken into account by the Commission in its decision-making process.

12

The Commission was mindful of Greenpeace's submission that the circumstances in which a “charitable purpose” could be found had been codified. That meant the Commission had to determine whether it was permissible to take account of pre-Act authorities dealing with the categories of charitable purposes stemming from the Charitable Uses Act 1601 (UK), 16 known as the Statute of Elizabeth. A decision on that issue was significant because earlier authorities had held that it was not open for a Court to make a decision on whether a political goal was of “public benefit” because the existence of different policy choices made it inappropriate for a Court to pronounce on which was the better outcome.

13

The Commission took the view “that case law decisions on charitable purposes decided before the Act came into force are relevant to the determination of whether an entity meets the [charitable purposes] requirements of the Act”. 17 However, it gave no reasons for reaching that conclusion.

14

Greenpeace's objects, as recorded in its rules, 18 are to:

  • 2.1 Promote the philosophy that humanity is part of the planet and its interconnected web of life and whatever we do to the planet we do to ourselves.

  • 2.2 Promote the protection and preservation of nature and the environment, including the oceans, lakes, rivers and other waters, the land and the air and flora and fauna everywhere and including but not limited to the promotion of conservation, disarmament and peace.

  • 2.3 Identify, research and monitor issues affecting these objects, and develop and implement programmes to increase public awareness and understanding of these and related issues.

  • 2.4 Undertake, promote, organise and participate in seminars, research projects, conferences and other educational activities which deal with issues relating to the objects of the Society.

  • 2.5 Promote education on environmental issues by giving financial and other support to the Greenpeace New Zealand Charitable Trust.

  • 2.6 Co-operate with other organisations having similar or compatible objects and in particular to co-operate with Stichting Greenpeace Council by abiding by its determination in so far as it is lawful to do so.

  • 2.7 Promote the adoption of legislation, policies, rules, regulations and plans which further the objects of the Society and support the enforcement or implementation through political or judicial processes, as necessary.

15

In assessing particular objects, the Commission held: 19

  • (a) Promotion of the protection and preservation of nature and the environment (being part of cl 2.2) was charitable under the fourth head mentioned in s 5(1) of the Act, “any other matter beneficial to the community”.

  • (b) The objects outlined in cls 2.3, 2. 4 and 2.5 were charitable, under the “advancement of education” head.

  • (c) The object set out in cl 2.1 was aspirational in nature.

  • (d) Clause 2.6 was ancillary to the accepted charitable purposes.

  • (e) The “promotion of … disarmament and peace” (appearing in cl 2.2) was a political purpose that was not “charitable”, as defined in s 5(1); nor was it ancillary to a charitable purpose.

  • (f) The objects articulated in cl 2.7 were political activities that amounted to an independent non-charitable purpose.

  • (g) Greenpeace, in undertaking non-violent direct action, may involve itself in illegal activities that disqualified it from registration as a charitable entity.

16

In reaching its conclusions on the political activity issues, the Commission took account of the reference to “advocac” in s 5(3) but found that was not conclusive because s 18 of the Act required...

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