Greenpeace, Political Purposes – “There and back Again”; Reflections on New Zealand Charity Law

4.1 Better Public Media Trust

In BPMT, Cull J noted that the 3-pronged test “requires more complex considerations” (BPMT, para., 54) thereby creating, no doubt, more confusion within the charitable sector, which confirms my view that the Supreme Court Greenpeace case in fact added more layers to determining the charitable nature of advocacy. However, whilst this test may be more complex, Cull J sought to assist in that matter, and set out the distinctions between the end, the means and the manner. Consequently, the “end” is the essential aspiration of the entity; that which they are aiming to achieve. Oftentimes this will be stated abstractly, for example, ending slavery, promoting human rights, or protecting the environment.^[45] (BPMT, para., 53) In contrast, the “means” is more tangible. This is the way in which the entity promotes the way in which the end will be achieved. These can be practical ways that the entity supports being undertaken in order to achieve its end.^[46] (BPMT, para., 53) Lastly, the “manner” is the way in which the entity carries out its advocacy. This is different from the “means” because the “manner” refers to the concrete path the entity utilises to promote its cause as opposed to the steps that it states that should be taken by others to achieve the end.^[47] (BPMT, para., 53) As a result, this formula is unique to political purposes, at least in New Zealand, because generally speaking, entities with political purposes will not necessarily be carrying out the charitable acts themselves. Rather, they are advocating for others to carry out those acts. This means that the threshold for advocacy to be charitable is high, and likely high threshold will not be met if an entity promotes its own views, or an academic merely agrees with the entity’s point of view (BPMT, para., 55) Consequently, for political purposes to be charitable, the cause that is being promoted must be charitable, and it must be promoted in such a way that is charitable.^[48] (BPMT, para., 54) This is why this evolved doctrine raises more complex considerations than for other types of purposes, not least because the entity concerned is a step removed from the overall charitable result, and intrinsically there is a degree of ambiguity in advocating for a particular purpose (BPMT, para., 54) Overall, therefore, whilst the Greenpeace 2014 case “set out a narrower test, or at least a much more rigorous test”,^[49] (Chevalier-Watts J [2020] p., 195) Cull J’s assessment of this test in BPMT has perhaps gone some way to providing some clarity, and indeed, tangibility to the test in relation to applying each limb of the test. In doing so, it might be argued that her Honour has blunted “one edge of that double-edged sword, specifically the edge that appeared to retain just as much difficulty in obtaining charitable status if an entity has substantive advocacy purposes.”^[50] (Chevalier-Watts J [2020] p., 195) Nonetheless, there is no doubt that this new 3-stage is still challenging and it is expected that it will be difficult for entities to meet the high bar that has been set by this test, and likely future cases will turn on their facts, thus Cull J’s examples may not be pertinent. However, that does not diminish the value of her Honour’s construction of this challenging area of law, because it might be argued that actually the Greenpeace 2014 case did little to clarify in reality what would be required in terms of applying the three-stage test. Thus, Cull J’s endeavours have shed some much-needed light on the test and its application. Further, I would argue that the original position of political purposes was ripe for change because in its own right it was challenging for courts and the charity sector to interpret. Indeed, my view finds support in the majority consideration of Greenpeace 2014, whereby Elias CJ stated that this doctrine was a relatively recent development and based on little authority. Further, defining “political” and “political activities” is fraught with difficulties, and excluding all advocacy from being charitable actually risked stultifying the law. Therefore, there are times when advocacy will be for the public good and as such a rule to relegate all advocacy as non-charitable was hard to justify.^[51] (Greenpeace 2014, paras., 60–63) It was perhaps difficult, therefore, to continue to justify the doctrine when Elias CJ suggested the possible damage that it was likely doing to the charitable sector through its complexities and possible stultification of the law through its continued application.

Nevertheless, even though the doctrine has been criticised over the years, the Greenpeace 2014 decision has also been criticised and that is, inter alia, because it has been argued that a court has yet to set out what is the ultimate public benefit of an issue, irrespective of how controversial that issue maybe.^[52] (Glazebrook S (2019), p., 666) Therefore, questions still remain as to where a court may draw the line on controversial matters. In addition, it has been asserted that gathering evidence to meet this test will be difficult and rather those resources would be better spent engaging in actual charity work,^[53] (Glazebrook S (2019), p., 668) which suggests that the charity sector may not necessarily feel the benefit of the new iteration of the doctrine.

We now turn the High Court Greenpeace 2020 case to assess the position of advocacy and what appears to be the end of the long journey for Greenpeace, as it travelled “there and back again” in jurisprudential terms,^[54] and whilst it is acknowledged that the 2020 case did not answer the aforementioned criticisms per se, Mallon J’s judgment has gone some way in confirming additional aspects of the new political purpose landscape.

4.2 Greenpeace 2020

The objects at the time of this case included promoting and preserving the environment, and one of the key principles that Mallon J in Greenpeace 2020 had taken from Greenpeace 2014 was that advocacy for environmental protection can be charitable and the ends invariably necessitate wide-ranging backing and efforts, which can occur through political and legal means.^[55] (Greenpeace [2020], para., 46) Nonetheless, her Honour confirmed that even though Greenpeace 2014 made sea changes within charity law, the issues of applying the newly-created three-stage test lay in its application, thus this case is instructive from the New Zealand jurisprudential point of view in a hope that it can impart more wisdom to the charity sector in relation to that test.

One issue for Mallon J was that the Supreme Court in Greenpeace stated the advocacy for the environment was charitable, although this would depend on the nature of the advocacy itself, and this was not addressed in relation to Greenpeace because that was not considered an issue by the Charities Commission when it was returned to the Board to reconsider.^[56] (Greenpeace [2020], para., 50) Mallon J, however, did have to address that issue and without assistance as to what is meant by “the nature of the advocacy.” Consequently, she was required to elucidate on an obscure requirement that had not been expressed previously in charity law. In addition, she confirmed that there are theoretical issues associated with distinguishing between the “end”, the “means” and the “manner”. However, following Cull J’s guidance, Mallon J stated that in Greenpeace’s situation, the “end” would be their advocacy for environmental protection, and whether or not that progresses public benefit would rest on what is being promoted, thus the “means”, and the “method” were how the promotion was being conducted.^[57] (Greenpeace [2020], para., 51) This rationalisation of the three-stage test, therefore, provided some early structure within the decision and aids clarity, as well as demonstrating how it may be applied in a novel situation.

In considering how advocacy for the environment as an end goal may comply with public benefit, Mallon J distinguished that type of advocacy from advocacy for peace and nuclear disarmament, which was an earlier legal consideration in the Greenpeace journey, and echoed the approach of the Supreme Court. This was because advocating for the end of nuclear disarmament and the promotion of peace would require complex state policy decisions, and the consequences of such decisions meant that public benefit was not inherently set within that end. In contrast, advocacy for the environment “often requires broad-based support and effort”^[58] and has already been confirmed as being charitable, although this is not a carte blanche guarantee that such advocacy will be charitable. It will depend entirely on the nature of the advocacy.

As part of the assessment of the nature of that advocacy, her Honour noted that one aspect of that advocacy related to the avoidance of catastrophic climate change and this was a “classic example of an environmental end that requires broad-based support and effort.”^[59] (Greenpeace [2020], para., 89) Examples of such broad-based support and efforts were reflected in, inter alia, New Zealand ratifying the United Nations Framework Convention on Climate Change and national school lobbying that resulted in single use plastic bags being removed from supermarkets. As a result, her Honour concluded that if protecting the environment was charitable, by association, so must be avoiding catastrophic climate change, and Greenpeace’s advocacy was a component of that debate.^[60] (Greenpeace [2020], paras., 89–90)

In relation to Greenpeace’s advocacy for the oceans, Mallon J noted there was public benefit in ensuring sustainable fishing, and sustainable fishing is a “measure towards protecting the ocean environment.”^[61] (Greenpeace [2020], para., 92) Indeed, advocating to protect oceans requires broad-based support and efforts in an attempt to prevent over fishing, and also to prevent damaging fishing methods. This was equal to advocating for the protection of the environment. Interestingly, her Honour helpfully aligned this type of advocacy with the type of advocacy that occurs in court or before a select committee.^[62] (Greenpeace [2020], para., 94) Such alignment will surely be of benefit for future cases when assessing if a particular advocacy meets public benefit requirements.

In addition, and also usefully in providing more tangible construction of how advocacy may be of public benefit, Mallon J confirmed that Greenpeace’s advocacy for preserving freshwater was equally as charitable as protecting the oceans. In the absence of such advocacy, damage to rivers, as might occur from some dairy farming practices, is unlikely to be fully understood, nor given due gravitas. Thus, in essence, this type of advocacy provides a method of understanding issues that would not otherwise be comprehended, and this would benefit humankind. Consequently, her Honour determined that Greenpeace was charitable because, inter alia, advocating for the environment is a charitable purpose.^[63]

Thus, what can be said about Mallon J’s detailed consideration is that advocating for the environment developed earlier environmental protection cases, which have been historically less expansive in setting out how environmental protection may be charitable, and certainly in relation to the issue of advocacy. As a result, in some of these cases there had been some reluctance to recognise environmental protection as being charitable, as evidenced in Kaikoura County v Boyd,^[64] where protecting the land from invasion by the sea was said to stretch the analogies within the Preamble of the Statute of Elizabeth.^[65] (Dal Pont, G (2018) p., 317) Other cases have refused to acknowledge environmental protection as being charitable^[66] although later cases, including Centrepoint Community Growth Trust v Commissioner of Inland Revenue,^[67] confirmed that environmental protection was a broadly-held public benefit. Nevertheless, what Mallon J has now achieved in relation to environmental protection is ensuring that advocating for such protection may also now fall within the charitable rubric of protecting the environment. As a result, this develops charity law in alignment with the “awareness and concern over environmental protection and preservation”,^[68] (Chevalier-Watts, J., p., 287) not least because such awareness and concern having been “heightened with the passage of time, in a fashion unheralded, whether at the time of the … Preamble or indeed into the twentieth century.”^[69] (Chevalier-Watts, J., p., 287) Indeed, I would argue that protecting the environment and thus preserving humankind falls squarely within the requirement of charity law, thus supporting the earlier mentioned “machinery or harmony of civil society”.^[70] (Greenpeace, para., 70). Consequently, it is difficult to see how this type of advocacy could not be charitable.

Of course, not all future advocacy claims will be related to environmental protection but this in itself may not be an issue for the courts. This is because other analogous ends being advocated may fall within the remit of this type of advocacy and that being so, charity law will be responsive societal changes. Therefore, this newly constructed doctrine may be beneficial because it will underpin the fact that a “modern, outsourced and contracting state may throw up new need for philanthropy.”^[71] (Greenpeace 2014, para., 46) Indeed, it is arguable that the historical doctrine did not enable charity law to respond to new needs for philanthropy so robustly, not least because “admirable objects too often f[e]ll foul of ”^[72] (Re Collier, p., 90) of the historical approach. Consequently, I assert that whilst Greenpeace 2014 may not have made it any easier for entities to obtain charitable status in light of their political purposes, Mallon J has shed some light on circumstances in which advocacy will be charitable, and how that might be achieved. Indeed, this view finds support in the aforementioned 2022 Supreme Court Family First decision, where Williams J confirmed the evolution of charity law has been problematic because there has been little guidance as to its evolution in response to societal growth, and the political purpose doctrine has highlighted this issue. This is not least because of the increase of advocacy-based entities to support the varying needs of society (Family First., para 164). Nevertheless, and importantly in relation to this article’s doctrinal discussions regarding the new political purpose test, the Family First decision confirmed that purposes that advocate against any law reforms that would be beneficial non-heterosexual “traditional” forms of family were actually discriminatory, and discriminatory purposes were self-evidently not of public benefit thus not charitable. This is because the detrimental effects of advocating against law reform that would protect vulnerable or minority groups would outweigh any possible benefits to supporting “traditional” families. “Traditional” families being the marriage between heterosexual men and women, as promoted by Family First (Family First, paras., 136–139). Thus, Family First confirmed that whilst Greenpeace 2014 might have eradicated some of the barriers to advocating for a cause by removing the blanket exclusion on political purposes, it also narrowed the gateway for purely advocacy-based purposes. In other words, those purposes that advocate for a cause that is too self-promoting, or advocacy where there is insufficient consensus as to that purpose’s benefit to the community, will not be charitable, and this is now recognised through the conceptual framework provided by the new 3 stage test instead of the problematical and much criticised original doctrine (Family First, paras., 178–179). It should be noted that whilst the Family First 2022 did address the political purpose doctrine, the case was also strongly focused on the advancement of education as a charitable purpose, which is beyond the scope of this article.

As a result, it could be argued that the 3-stage test is a welcome addition to the political purpose discourse. However, what then can be said about New Zealand’s approach in relation to other jurisdictions? In considering that, we turn to Australia and Canada in order to consider international trends, which echo in some way New Zealand’s own legal journey. Although as will also be demonstrated, political purposes present challenges not just for the New Zealand courts, and questions pertaining to political purposes still remain in other jurisdictions regardless of recent evolutions. Thus, even though these jurisdictions have not adopted a conceptual framework like New Zealand to assess public benefit, what these comparative discussions demonstrate is the aforementioned difficulties that the modern growth of advocacy-based entities have emphasised within the charity law narrative. It should be noted that the purpose of assessing other jurisdictions is not to suggest that New Zealand’s approach is better doctrinally or socially. Rather, the benefit of this comparative approach is to provide a more complete picture overall of the political purpose doctrine, and its evolution, in the context of various jurisdictions. Indeed, what these discussions suggest is that no matter the approach of a jurisdiction, the political purpose doctrine remains a thorny challenge regardless of its iteration. As a result, perhaps it is more appropriate for each jurisdiction to decide on its own interpretation because that way the doctrine will be more likely to reflect the inherent social and legal frameworks appropriate to its own jurisdiction. We begin with Australia.

5.1 Australia

The Australian High Court made a sea change to the doctrine in 2010 with the case of Aid/Watch Incorporated v Commissioner of Taxation.^[73] In this case, Aid/Watch, an organisation concerned with promoting effective national and international aid provided in foreign countries through, inter alia, campaigning for effective policies and programs, argued that even though its purposes appeared political, it was charitable. The majority of the Court determined that the Bowman line of authority was not directed to the Australian system of government that was established and maintained by its Constitution, and that this Australian system of law promoted agitation of its legislative and policy changes in order to operate effectively. It was in this method of constitutional processes that the public benefit was found. Consequently, the Court concluded that generating this type of public debate in relation to foreign aid to relieve poverty was beneficial to the community under the fourth head, meaning that there was no longer a general doctrine that excluded political purposes from being charitable in Australia.^[74] (Aid/Watch, paras., 45–48) The Charities Act 2013 then gave force to this decision^[75] (Turnour M., and Turnour E (2014), p., 49) under s 12, which in essence meant that charities could engage in certain political activities,^[76] (Beard J (2018), p. 256) with some notable exceptions, including a charity promoting or opposing a political party, or election campaigning.^[77] (Beard J (2018), p. 252 and Charities Act 2013, s. 11 (b)) However, whilst the Act did limit some political purposes, it has been noted that these exceptions should be read narrowly, taking in to consideration human rights and application of the common law.^[78] (Turnour M., and Turnour E (2014), p., 48) Also of note is that whilst s 12 of the Act itself does not refer to “activities”, only “purposes”, “purposes” have been interpreted as including “activities”. This may be the correct approach and echoes the consideration of the dissenting Judge Kiefel J in the Aid/Watch case, where her Honour concluded that Aid/Watch’s activities were not directed to its purpose of promoting public debate. It has also been confirmed by s 18 (3) of the New Zealand Charities Act 2005 that an entity’s purposes may inferred from its activities (Greenpeace 2014, para., 14). However, it should be made clear that there is a distinction between “purposes” and “activities”. This is because “[t]he purpose clause in a charity’s governing document must reflect the charity’s activities”^[79] but activities will not always be assessed when determining the charitability of purposes. However, it is not always evident that courts distinguish between the two matters and this lends weight to the consideration that the political purpose doctrine, regardless of its national form, is still a complex and challenging doctrine.

Nevertheless, Australia appears to have embraced what might be deemed a more liberal approach to the political purpose doctrine, which is likely to be welcomed in the charity sector as it may reduce the chilling effect on charities concerning negating charitable status in relation to political activities. Even so, whilst this change indicates a significant departure from the traditional approach, it is acknowledged that Aid/Watch has left the political purpose landscape in Australia with some uncertainty.^[80] (Synge M (2018), p., 373) Some of that uncertainty arises because the Court in Aid/Watch chose not to explore the margins of public debate,^[81] (Beard J (2018), p. 259) meaning that, inter alia, it might not be possible to ascertain the full extent of the limits of charitable purpose.^[82] (Turnour M., and Turnour E (2014), p., 49) Consequently, it has further been asserted that as a result of the majority of the Court’s application of constitutional and charity law principles, this resulted in the doctrine being left “sufficiently vague that it may be read broadly or narrowly.”^[83] (Beard J (2018), p. 259) Such ambiguity may contribute still to a chilling effect for charities because of continued uncertainty as to whether their purposes may fall outside of the exceptions created by Aid/Watch or indeed the provisions of the Charities Act 2013. Nevertheless, what this decision has done is endorse freedom of expression and political debate within Australia,^[84] (Glazebrook, S (2019), p., 662) and whilst it cannot be denied that the decision left a level of uncertainty in relation to political purposes, in reality, it heralded a positive change to the charity narrative because these values emphasised and underpinned human rights.^[85] (Glazebrook, S., (2019), p., 667) Thus the decision might be seen as responding to the demands of contemporary society, albeit with the Charities Act 2013 providing some constraints.^[86] (Turnour M., and Turnour E (2014), p., 59) Overall, one might conclude that the Australian approach is therefore to be welcomed by the charity sector for the reasons cited because the starting point now is that where there is lawful public political advocacy, or where a purpose engages in such activity, then that is for the public benefit. That means that in Australia, the focus on determining whether or not a purpose is charitable is on how the advocacy is carried out, in other words, and only the ends will be considered in exceptional situations (Murray I., (2019., 50) This can be contrasted with the New Zealand approach, where the Supreme Court in Greenpeace 2014 stated that political purposes will usually not be charitable, and it would be necessary to assess the ends, the means and the manner of the purpose without clear explanation as to how this should be approached (Murray I., (2019) This means that the New Zealand approach appears materially more onerous, not only because of the 3-stage test, but also because “if an entity asserts a particular view about how to achieve an end the court must enquire into whether adopting those means to achieve that end will result in a net benefit.”^[87] Although it must be recalled that, at least in relation to environmental advocacy, the 2020 Greenpeace case has provided some further clarity on just how such purposes can be assessed for their charitability. Nevertheless, whilst the 2020 Greenpeace case might have provided some lucidity in that respect, this does not resolve the still remaining ambiguity generally about political purposes in New Zealand in contrast with Australia. This is because, as has been asserted, a court may have to consider whether the advocacy in question is “consistent with a nation’s system of government”^[88] thus it may be that courts will have to assess in each situation whether achieving a political purpose by that specific means is beneficial. This is likely to be a complex undertaking in many circumstances, not least because there are likely to be direct and tangible, and indirect and intangible benefits, to the purpose being assessed. This is as opposed to, in Australia, the more traditional judicial approach of determining whether the advocacy is likely to be harmful (Murray, I., (2019, p 53–54). What then can be said about the Canadian approach and its impact on the political purpose debate?

5.2 Canada

Historically, Canada followed the same path as New Zealand, in that Canada prevented charities from pursuing political purposes because of the Bowman line of authority.^[89] (Chan, K., (2020) p., 158) Nevertheless, with the handing down of the 2018 Canada Without Poverty v Canada^[90] case, those longstanding rules “came to an abrupt and rather undignified end”^[91] (Chan K., (2020) p., 158) With that judgement came a “happier charitable sector”,^[92] (Chan K., (2020) p., 153) but it also gave rise to more legal uncertainty.^[93] (Chan K., (2020) p., 153) This then perhaps echoes the legal landscapes of both Australia and New Zealand, where the charity sector in Australasia is both more certain and more complex depending on the circumstances of the advocacy. However, the distinguishing factor with regard to the Canadian approach in the case in question is the focus on political activities as opposed to political purposes, and it is not necessarily clear whether there is a clear distinction between “purposes” and “activities”. Indeed, the Canada Revenue Agency (CRA), which administers Canadian tax laws and is the governing body for Canadian charities, noted that the difference between purposes and activities is often uncertain but it stated that both are equally important in the assessment of the charitability of an entity.^[94] Nevertheless, it is noted that the CRA does focus on activities because of the definition of “charitable organization” found within subsection 149 (1) (a.1) of the Income Tax, although it is asserted that this leads to complexity and contradictions in determining charitability.^[95] (Juneau C (2016), p., 2; 9–12). Nevertheless, whilst Canada appears to focus on activities, it needs to be made clear that distinction between “purposes” and “activities” has been the subject of academic debate for many a year^[96] and the issues raised are complex and beyond the scope generally of this article. Rather the purpose of considering the Canadian context is to demonstrate that even though Canada, like New Zealand, may have conducted changes to its political purpose framework, which might be considered public policy changes, as opposed to doctrinal changes, such changes also reflect the continued uncertainties that continue to abound within all the jurisdictions considered in this article. Indeed, in relation to the view that Canada may have made changes because of public policy, this may be because of its tax-based governance of charities, and it is this tax governance that is said to be greatly influential in determining charitability because charities are seen as a “tax loophole or ‘fiscal cost’”^[97] (Barker, S (2022), p 3). Such influence may explain why New Zealand adopted the doctrinal “3 stage test” in contrast to Canada although these differences are not easy to extrapolate. Regardless however of Canada’s approach, its changes have not necessarily made that legal framework any clearer, thus echoing the construct that the doctrine remains challenging for the legal sector regardless of the form that it takes.

The Canadian case in question was an appeal by Canada Without Poverty (CWP), which sought a declaration that s 149.1 (6.2) of the Income Tax Act 1965 (ITA), which restricted political activities of charities, violated the Canadian Charter of Rights and Freedoms (Charter), in particular the right of freedom of expression under s 2 of the Charter.^[98] The issue with s 149.1 (6.2) was that the CRA had historically permitted no more than 10% of a charities resources to be spent on such activities, but this limitation had been criticised not least because it was said to impose an “advocacy chill”^[99] (Glazebrook S., (2019), p., 640) and thus restrict charities’ activities. In the judgment, the Court confirmed that CWP’s activities “were squarely within the charitable purpose of relief of poverty”^[100] (Canada Without Poverty, para., 41) and it was not possible for it to carry out its purposes whilst restricting its activity to the 10% limitation imposed by the CRA under s 149.1 (6.2).^[101] (Canada Without Poverty, para., 42) Further, CWP had a right to freedom of expression through its “unimpaired public policy advocacy”^[102] (Canada Without Poverty, para., 47) and the restriction placed upon it by the CRA’s interpretation of s 149.1 (6.2) was contrary to that right, thus contrary to its rights under s 2(b) of the Charter to freedom of expression.^[103] (Canada Without Poverty, paras., 47–48) In response, the Government enacted legislative amendments to the ITA^[104] in the manner envisaged by the decision, meaning that charities can now “carry out unlimited public policy dialogues and development activities that further a charitable purpose.”^[105] (Chan K., (2020) p., 153)

Prima facie, this development appeared a welcome addition to the political purpose narrative because it meant that charities could engage in robust public advocacy to support communities without fear of being denied charitable status under the former “tyrannical”^[106] s 149.1 (6.2). However, this decision left many unanswered questions, including what are the limits of freedom of expression and freedom of conscience and religion from constitutional and charitable jurisprudence points of view.^[107] (Chan K (2020) p., 190) This case does not assist on those matters, leaving a sense of uncertainty as to how far the political purpose doctrine may be extended, or what its limitations may be, much as has occurred in Australasia since the Aid/Watch and Greenpeace 2014 decisions. Therefore, with change comes uncertainty but there may still be hope for further clarity in Canada, as “given the inherent flexibility within the definition of charity to adapt to modern conditions”,^[108] (Glazebrook S (2019), p., 669) as reflected in the Canada Without Poverty case, there may still be an opportunity for courts to clarify the extent of the doctrine.^[109] (Glazebrook S (2019), p., 669)