Charities Law in New Zealand begins, as with other common law jurisdictions, in England with the Elizabethan Statute of Charitable Uses in 1601 (‘the Statute’). Although the law in New Zealand is now governed by the Charities Act 2005 (‘the Act’), a recent decision of the Supreme Court concerning the charitable status of Greenpeace shows that the more than 400 years of development of the common law in this area continues in earnest. Charitable status in New Zealand, and the resulting tax benefit, is determined by the Department of Internal Affairs and the Charities Board who assess, by analogy with existing cases, whether the particular objectives of the entity concerned are indeed charitable. Establishing ‘charitable purpose’ is usually the critical issue for those wishing to apply. November 2014 – January 2015 Page 4 of 4 Swayne McDonald Lawyers Manurewa Office 09 267 2700 Botany Junction Office 09 265 2700 Postal: P O Box 75 442 Manurewa, Auckland 2243 firstname.lastname@example.org While a number of specific charitable purposes were originally set out in the preamble to the Statute, the courts have considered that this is not an exclusive list and preferred an approach said to be within the “spirit and intendment of the preamble”. In time charitable purposes came to be classified under four separately recognised headings, namely: relief of poverty, advancement of education, religion, and other matters beneficial to the community. It is this fourth heading, relating to public benefit, which has led to difficulties within the law. Some cases have argued a public benefit alone creates a presumption in favour of being charitable, whereas others have favoured the more traditional approach of determining charitable purpose by analogy. Despite these divergent views, what was reasonably well accepted in New Zealand was that if the objectives of the organisation concerned were advocacy or political (as in the promotion of law reform) then, unless these could be considered ancillary to an overriding charitable purpose, the organisation could not be a charity. The Courts considered they were not competent to assess where the public benefit lies in what are essentially political matters. Greenpeace’s objectives include the promotion of nuclear disarmament. In 2008, when Greenpeace first applied for registration as a charity, it was denied on the basis that although the bulk of its purposes (such as the preservation of the environment) were charitable, the promotion of disarmament was not. Greenpeace challenged this decision by appealing to the High Court, and failing there appealed to the Court of Appeal and eventually the Supreme Court. Greenpeace argued that just having political objectives did not necessarily mean it was noncharitable. The Supreme Court heard the case in August and by a majority decision upheld Greenpeace’s argument – stating that the political purpose exclusion should no longer be applied in New Zealand. However, it did not follow that Greenpeace would automatically become a charity. Instead the Court found, that despite being political, it could not say that the promotion of nuclear disarmament was necessarily a public benefit and for that reason it chose to remit the issue for reconsideration by Charities Services. While a watershed case for charities in New Zealand, the case demonstrates that political organisations will not automatically gain charitable status and nor will they be automatically excluded. Instead, the Court found, what is required is a consideration of the political end being advocated, and the means of its promotion, in order to assess whether that purpose can be said to be of public benefit within the spirit and intendment of the Statute.