Greenpeace of New Zealand Incorporated Coa

• Jurisdiction: New Zealand
• Judge: White J
• Judgment Date: 16 November 2012
• Neutral Citation: [2012] NZCA 533
• Docket Number: CA333/2011
• Court: Court of Appeal
• Date: 16 November 2012

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

BETWEEN

Greenpeace of New Zealand Incorporated

Appellant

[2012] NZCA 533

Court:

Harrison, Stevens and White JJ

CA333/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from Charities Commission (“Commission”) decision declining to register appellant as charitable entity under Charities Act 2005-Xs great majority of objectives were accepted as charitable however Commission said promotion of “disarmament” and of “peace” as outlined were political purposes — further appellant's activities showed its focus on “political advocacy” was so great that was not merely ancillary to a charitable purpose — website showed that non-violent direct action was central to its work and might involve illegal activities such as trespassing — appellant had since proposed amendments to replacing object of promoting disarmament with object of promoting “nuclear disarmament and the elimination of all weapons of mass destruction” and limiting political advocacy to ancillary activities that furthered its charitable objects — proposed amendments had significant impact on specific issues for determination on appeal — whether amended objects met definition of “charitable purpose”.

Counsel:

D M Salmon and K L J Simcock for Appellant

P J Gunn and R I Berkeley for the Board

• A The appeal is allowed.

• B The decision of the Charities Commission declining to register Greenpeace of New Zealand Incorporated as a charitable entity under the Charities Act 2005 is set aside.

• C The application by Greenpeace of New Zealand Incorporated for registration as a charitable entity under the Charities Act 2005 is referred to the chief executive of the Department of Internal Affairs and the Board for reconsideration in light of this judgment.

• D There is no order for costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by White J)

Table of Contents

	Para No
Introduction	[1]
Background	[6]
The Commission decision	[13]
The High Court decision	[17]
Submissions on appeal	[23]
The Charities Act	[34]
“Charitable purpose”	[55]
Peace and nuclear disarmament	[70]
Ancillary political activities	[83]
Unlawful activities?	[93]
Reference to the chief executive and the Board?	[101]
Result	[104]

Introduction

1 The principal issue on this appeal is whether Greenpeace of New Zealand Incorporated (Greenpeace) is entitled to be registered as a charitable entity under the Charities Act 2005 (the Act) on the ground that it is established and maintained “exclusively for charitable purposes”. Registration was declined by the Charities Commission 1 whose decision was upheld by the High Court. 2 Greenpeace appeals to this Court on the grounds that its objects, when properly interpreted, and its activities, when examined in context, meet the requirements of the Act for its registration as a charitable entity.

2 Since the decisions of the Commission and the High Court were delivered, the Act has been amended, the Charities Commission has been disestablished and its functions taken over by the chief executive of the Department of Internal Affairs and

a Board. 3 It was common ground that we should determine the issues on this appeal under the legislation in its current form as the substantive provisions remain largely unchanged

3 In the course of the hearing of the appeal, counsel for Greenpeace undertook to clarify the wording of Greenpeace's two specific objects which are at issue in this case. Following the hearing, a memorandum was filed indicating that Greenpeace proposes to amend these two objects. We explain the proposed amendments later in this judgment. At this stage we note that they have a significant impact on the specific issues for determination on the appeal, which now are:

• (a) whether Greenpeace's object of promoting peace and nuclear disarmament and the elimination of all weapons of mass destruction is a “charitable purpose” ;

• (b) whether Greenpeace's object of promoting the adoption of legislation, policies, rules, regulations and plans which further its objects and its use of political or judicial processes to enforce or implement its objects are merely ancillary to its charitable purposes and not independent purposes;

• (c) whether, in view of the proposed amendments to Greenpeace's objects and in light of its activities, Greenpeace would be involved in illegal activities that mean that it is not maintained “exclusively for charitable purposes” ; and

• (d) whether, in these circumstances, this Court should remit Greenpeace's application for registration to the Board for reconsideration.

4 We address these issues by outlining first the background to Greenpeace's application for registration and the decisions of the Commission and the High Court. We then consider the requirements of the Act and relevant aspects of the law relating

to the nature and scope of the expression “charitable purpose” in New Zealand and apply the law to the facts of this case

5 In the absence of an affected party to argue against the appeal, counsel for the Board appeared to assist the Court.

Background

6 Since 1976 Greenpeace has been incorporated in New Zealand under the Incorporated Societies Act 1908. It has also previously enjoyed charitable status under a regime administered by the Commissioner of Inland Revenue. 4

7 The nature and purposes of Greenpeace are best understood from its objects, which at the time of its application to the Commission for registration read as follows:

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.

8 There is no dispute that, apart from the issues raised in connection with objects 2.2 and 2.7, all the rest of Greenpeace's objects meet the definition of “charitable purpose” under the Act. The Commission accepted this in its decision and the Board did not suggest otherwise on appeal. This means that the great majority of Greenpeace's objects, including in particular its objects relating to the natural environment and its protection, have been accepted as charitable. 5

9 As already mentioned, during the hearing of the appeal in this Court, we sought further clarification from Greenpeace of the wording of objects 2.2 and 2.7. Following the hearing, we received advice that the Board of Greenpeace had resolved to recommend to a general meeting of Greenpeace that objects 2.2 and 2.7 be amended to read as follows (with the changes to the existing wording in bold):

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 conversation, peace, nuclear disarmament and the elimination of all weapons of mass destruction.

2.7 Promote the adoption of legislation, policies, rules, regulations and plans which further the objects of the Society listed in clauses 2.1-2.6 and support their enforcement or implementation through political or judicial processes, as necessary, where such promotion or support is ancillary to those objects.

10 As already noted, these proposed amendments have a significant impact on the specific issues raised on this appeal. The judgment proceeds on the assumption that the proposed amendments will be approved at a general meeting.

11 When the Charities Act came into force on 1 July 2005, 6 Greenpeace, like other organisations that had previously held charitable status, was obliged to apply to the Commission for registration by July 2008 in order to qualify for the charitable income tax exemptions. 7 Greenpeace did so by application dated 25 June 2008.

Greenpeace submitted that its objects met the requirements for registration as a charitable entity

12 On 1 June 2008 Greenpeace also created the Greenpeace New Zealand Educational Trust, which was registered separately by the Commission as a charity on 30 June 2008. There is no dispute that the objects of the Trust meet the definition of “charitable purpose” under the Act.

The Commission decision

13 The Commission declined Greenpeace's application for registration on the ground that Greenpeace was not established and maintained exclusively for charitable purposes as required by s 13(1)(b)(i) of the Act. 8 In its decision the Commission referred to the provisions of the Act relating to the definition of “charitable purpose” and the matters the Commission needed to have regard to when considering an application for registration. 9 The Commission...