Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 


Judgment: Re Greenpeace of New Zealand Incorporated

[Judgment: SC_972012_Greenpeace.pdf]

Supreme Court of New Zealand
6 August 2014

MEDIA RELEASE – FOR IMMEDIATE PUBLICATION RE GREENPEACE OF NEW ZEALAND INC (SC 97/2012) [2014] NZSC 105 PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment.

The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at Judicial Decisions of Public Interest www.courtsofnz.govt.nz

Greenpeace of New Zealand Inc is an incorporated society which sought registration as a “charitable entity” under Part 2 of the Charities Act 2005.

Societies or institutions qualify for registration under s 13 of the Act only if they are “established and maintained exclusively for charitable purposes”.

At the time of application, the decision on registration was made by the Charities Commission. Following statutory amendment, the decision is now made by the chief executive of the Department of Internal Affairs and the Charities Board. In the absence of a contradicting party, the Charities Board appeared to assist the Court.

The Charities Commission declined Greenpeace registration on the basis that two of its objects were not charitable. The objects found to be not charitable

were the promotion of disarmament and peace and the promotion of “legislation, policies, rules, regulations and plans which further [Greenpeace’s other objects] and support their enforcement or implementation through political or judicial processes as necessary”. The Commission further concluded that the direct action which it found to be “central” to the activities carried on by Greenpeace could entail illegal activity which also could not be said to be in the public interest and charitable.

This appeal concerned the extent to which purposes that are “political” (including those that advocate particular views) can be charitable and the extent to which an entity which engages in illegal activities or has illegal purposes can be charitable.

Greenpeace argued that the “political purpose” exclusion, whereby the law treats objects which are “political” as non-charitable and prevents registration of an entity with such objects unless they are merely “ancillary” to charitable objects, should no longer be applied in New Zealand. The Board contended in response that the political purpose exclusion is codified by s 5(3) of the Charities Act.

Greenpeace also contended that illegal purposes or activities, if ancillary or minor, do not disqualify an entity from registration as charitable. It argued that the scheme of the Act is that only “serious offending” justifies removal from the register. Because of that scheme, it contended that purposes which are unlawful or illegal are governed by s 5(3), so that if no more than ancillary, they do not preclude charitable status. The Board argued in response that it is well-established that illegal or unlawful purposes will preclude registration as a charity.

In the High Court, Heath J considered that he was bound by Court of Appeal authority to find that the two objects of promoting peace and disarmament and advocacy through political and other forums meant that Greenpeace was not “established and maintained exclusively for charitable purposes”. Although he did not need to determine the issue of illegal activity, Heath J reservations about whether there was sufficient evidence for the Commission to find that Greenpeace was deliberately involved in undertaking illegal activity.

Greenpeace appealed to the Court of Appeal. In that Court, it indicated that it had resolved to recommend to a general meeting that the two objects which had caused the difficulty be changed. The promotion of “disarmament” would be restricted to the promotion of “nuclear disarmament and the elimination of all weapons of mass destruction” (on the basis that these purposes accorded with New Zealand’s international obligations and domestic law and were not controversial) and the advocacy object would be changed to make it clear that it was truly “ancillary” to Greenpeace’s charitable objects.

The Court of Appeal affirmed the exclusion of political purpose, finding that it is codified by s 5(3) of the Charities Act. However, it held that the foreshadowed amendments to the Greenpeace objects avoided the exclusion.

This was because it was not controversial in New Zealand that promoting nuclear disarmament and eliminating weapons of mass destruction are for public benefit and the political advocacy object was now expressed to be limited to that which was ancillary only to other charitable purposes.

The Court of Appeal considered however that the advocacy actually carried out by Greenpeace could well be beyond a level merely “ancillary” to its charitable purposes. If so, Greenpeace would not be maintained exclusively for charitable purposes. The matter had not been considered by the Commission because of the view it had taken that the expressed objects before amendment prevented registration. The Court of Appeal accordingly referred the application for registration for reconsideration by the chief executive of the Department of Internal Affairs and the Charities Board. The reconsideration was also to cover whether the direct action taken by Greenpeace entails unlawful activities that are inconsistent with charitable status.

The Supreme Court by majority (comprising Elias CJ, McGrath and Glazebrook JJ) allowed the appeal against the Court of Appeal’s determination that a political purpose cannot be a charitable purpose.

The majority held that a political purpose exclusion should no longer be applied in New Zealand. They concluded that a blanket exclusion of political purposes is unnecessary and distracts from the underlying inquiry whether a purpose is of public benefit within the sense the law recognises as charitable.

They rejected the conclusion of the Court of Appeal that s 5(3) of the Charities Act enacts a political purpose exclusion with an exemption if political activities are no more than “ancillary”. Rather, s 5(3) provides an exemption for noncharitable activities if ancillary.

The minority (William Young and Arnold JJ) concluded that s 5(3) codifies the position that advocacy in support of a charitable purpose is non-charitable unless it is merely ancillary to that charitable purpose. They further took the view that the rule that political advocacy is not charitable is defensible not only on the basis of the authorities but also as a matter of policy and practicality and that there is accordingly no requirement to depart from the ordinary language approach to s 5(3).

The Court unanimously dismissed the appeal against the Court of Appeal’s determination that purposes or activities that are illegal or unlawful preclude charitable status. The Court held that an illegal purpose is disqualifying and that illegal activity may disqualify an entity from registration when it indicates a purpose which is not charitable even though such activity would not justify removal from the register of charities under the statute.

[Judgment: SC_972012_Greenpeace.pdf]

© Scoop Media

 
 
 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Digital Evolution: Scoop Independent News Launches "Operation Chrysalis"

From today Scoop is beginning a process of public consultation with the political, business and civil society groups it has served for the past 15 and a half years.

"It is hoped that in time - with new leadership and increased community engagement - the chrysalis will incubate a new kind of Scoop, one which can sustainably continue Scoop's Mission 'to be an agent of positive change'", says Scoop Founder, Editor and Publisher Alastair Thompson.

"As big publishing shrivels, public participation in contributing and spreading news has grown. Scoop has evolved with this wave by providing an independent platform, committed to upholding democracy, providing a voice to all, and providing the public easy access to information about decisions which affect them." More>>

 

Parliament Adjourns:

Greens: CAA Airport Door Report Conflicts With Brownlee’s Claims

The heavily redacted report into the incident shows conflicting versions of events as told by Gerry Brownlee and the Christchurch airport security staff. The report disputes Brownlee’s claim that he was allowed through, and states that he instead pushed his way through. More>>

ALSO:

TAIC: Final Report On Grounding Of MV Rena

Factors that directly contributed to the grounding included the crew:
- not following standard good practice for planning and executing the voyage
- not following standard good practice for navigation watchkeeping
- not following standard good practice when taking over control of the ship. More>>

ALSO:

Gordon Campbell:
On The Pakistan Schoolchildren Killings

The slaughter of the children in Pakistan is incomprehensibly awful. On the side, it has thrown a spotlight onto something that’s become a pop cultural meme. Fans of the Homeland TV series will be well aware of the collusion between sections of the Pakistan military/security establishment on one hand and sections of the Taliban of the other… More>>

ALSO:

Werewolf Satire:
The Politician’s Song

am a perfect picture of the modern politic-i-an:
I don’t precisely have a plan so much as an ambition;
‘Say what will sound most pleasant to the public’ is my main dictum:
And when in doubt attack someone who already is a victim More>>

ALSO:

Flight: Review Into Phillip Smith’s Escape Submitted To Government

The review follows an earlier operational review by the Department of Corrections and interim measures put in place by the Department shortly after prisoner Smith’s escape, and will inform the Government Inquiry currently underway. More>>

ALSO:

Intelligence: Inspector-General Accepts Apology For Leak Of Report

The Inspector-General of Intelligence and Security, Cheryl Gwyn, has accepted an unreserved apology from Hon Phil Goff MP for disclosing some of the contents of her recent Report into the Release of Information by the NZSIS in July and August 2011 to media prior to its publication. The Inspector-General will not take the matter any further. More>>

ALSO:

Drink: Alcohol Advertising Report Released

The report of the Ministerial Forum on Alcohol Advertising and Sponsorship has been released today, with Ministers noting that further work will be required on the feasibility and impact of the proposals. More>>

ALSO:

Other Report:

Leaked Cabinet Papers: Treasury Calls For Health Cuts

Leaked Cabinet papers that show that Government has been advised to cut the health budget by around $200 million is ringing alarm bells throughout the nursing and midwifery community. More>>

ALSO:

Get More From Scoop

 

LATEST HEADLINES

 
 
 
 
 
 
 
 
Politics
Search Scoop  
 
 
Powered by Vodafone
NZ independent news