Better Public Media Trust v Attorney-General was a recent case before the Court of Appeal that grappled with the familiar questions of what does it mean to be a public benefit charity and when can advocacy be a public benefit. The case highlighted the complex and subjective rules that face advocacy organisations wishing to obtain charitable status.
The full text of the case can be accessed here.
The facts
Better Public Media Trust v Attorney-General was an appeal from the High Court on whether Better Public Media Trust (BPMT) qualified for charitable status. BPMT applied to be registered as a charity under the Charities Act 2005 in October 2015.
In the first instance the Charities Registration Board (CRB) advised BPMT that it did not meet the requirements to be a charity and invited BPMT to make further submissions. Following 30 months of BPMT making further submissions and providing evidence the CRB issued its decision declining BPMT’s application. BPMT appealed this decision in the High Court which upheld the CRB’s decision on the basis that BPMT’s objectives were not beneficial to the community.
BPMT’s objectives were to:
- advance public media in New Zealand;
- promote the role of public media in educating, informing and entertaining New Zealanders;
- promote informed debate about public media issues;
- support improved access to funding, operating conditions and platforms of distribution for use by public media providers;
- represent and advance the interests of media audiences; and
- undertake other activities that are likely to further the charitable purposes of the trust.
The law
The core analysis in whether an organisation can gain charitable status is whether it has a charitable purpose. The definition of charitable purpose reflects the “four heads” of charity namely, (i) the relief of poverty, (ii) the advancement of education, (iii) the advancement of religion, and (iv) any other purposes beneficial to the community. BPMT applied for charitable status under the other purposes beneficial to the community head (it had also applied under the advancement of education, but this head was not at issue in the Court of Appeal).
The usual approach for organisations whose primary purpose is advocacy is to seek to rely on the fourth charitable head to gain charitable status. However, while appearing broad ‘other purposes beneficial to the community’ is a high bar to pass, particularly for advocacy organisations.
The case law on when advocacy groups can be charities and whether advocacy can cause an organisation to lose charitable status is discussed at length in the Court of Appeal judgment (paragraphs [22] to [55] for the eager readers). However, in short, the court followed the principles in the Supreme Court decision of Re Greenpeace New Zealand Inc, namely that there must be a public benefit to the entity’s advocacy activities, and the relevant purpose must be charitable by analogy with objects already held charitable in other cases.
The Court also considered Attorney-General v Family First New Zealand which reaffirmed the principles of Re Greenpeace but ruled that the entity in question (Family First) did not have a charitable purpose. The reason for this was that some of Family First’s advocacy was not “self-evidently beneficial in a charitable sense” and a purpose that was based on discrimination was not compatible with a charitable purpose.
The decision
The Court of Appeal in this case ultimately ruled that BPMT was eligible for charitable status. The reasons for this decision were that:
- BPMT’s purposes are capable of being beneficial to the community;
- the means and manner by which BPMT achieves its advocacy purpose suggest that its purposes are capable of being beneficial to the community; and
- when BPMT’s purposes are compared with recognised advocacy charities (in particular Greenpeace) clear analogies can be drawn between the recognised charitable purposes in those cases and BPMT’s purposes.
Our thoughts
We have provided support to several organisations in their pursuit of obtaining charitable status, including under the fourth charitable ‘head’. In our view, this case underscores the challenges that can arise when seeking charitable status under this category and emphasizes the importance of legal advice from the outset.
In our experience, Charities Services has become more cautious in granting charitable status and regularly will ask applicants for more information. Additionally, advocacy-based organisations face the extra challenge of working through the complex and subjective rules on whether other beneficial purposes can include some types of advocacy.
If you or your organisation would like to discuss the process of gaining charitable status, please contact one of the team below.
This article was co-authored by Liam Sutherland, a Law Clerk in our Corporate and Commercial team.
