Wednesday, August 06, 2014

Be careful what you ask for...

Back in 2005, the government rewrote the law governing charities, producing the Charities Act 2005. One of the changes in the law was a crackdown on charities with "political" purposes. where previously political advocacy in pursuit of charitable goals was acceptable, now it was not. As a result, groups like the National Council of Women and Greenpeace were deregistered.

Greenpeace has just won an appeal in the Supreme Court over some of the issues which led to its deregistration. The key finding:

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.

Some of this was kindof moot; the Court of Appeal had already ruled that promoting nuclear disarmament is "of public benefit" and not political (which is a laughable proposition; people disagree over it, therefore it is political). But now they'll get to widen their stated aims to include peace and general disarmament as well.

While I'm pleased for Greenpeace, this does open a can of worms, in that determining whether a "political purpose" is "beneficial to the community" inherently involves a value judgement. So, whose values will the Department of Internal Affairs and the Charities Board promote? Sadly, I think we can all guess. Promoting tax cuts for the rich will be found to be charitable; promoting higher taxes to reduce inequality and pay for better public services will not be. And while charities can appeal, the wealthy will have the funds to support their "charities", while the poor will not.

Fundamentally, the real problem is that we are still relying on a law from 1601 for our definition of "charity". Its long past time we got rid of it, and came up with something fit for the 21st century.