Susan Barker, Director of Sue Barker Charities Law, Wellington, New Zealand
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Canadian Journal of Comparative and Contemporary Law Vol 6 | No 1 | 2020 Issues in Charity and Non-Profit Law Canadian Journal of Comparative and Contemporary Law Vol 6 | No 1 | 2020 Issues in Charity and Non-Profit Law The CJCCL is published by The Canadian Association of Comparative and Contemporary Law at Thompson Rivers University Kamloops, BC Canadian Journal of Comparative and Contemporary Law Publication Copyright and Open-Access Policy The Canadian Journal of Comparative The CJCCL is an open-access and Contemporary Law (CJCCL) journal, the publication of which is is an open-access publication that governed by a publishing and licensing is available online at http://www. agreement between the CJCCL and cjccl.ca. Hardcopies can be ordered contributors. Any commercial use and on request. Each issue focuses on a any form of republication of material particular theme or area of law. 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This Issue should be cited as (2020) 6 CJCCL Canadian Journal of Comparative and Contemporary Law Editors-in-Chief Robert Diab Chris DL Hunt Lorne Neudorf Special Advisor Mary Hemmings Editorial Board 2019-20 Managing Editors Caitlin Kessler Alexa Adams Editors Katelin Dueck Paul Beckmann Candice Foulkes Rebecca Dickson Jasmine Gill Larissa Donovan Emily Halliday Arjun Hair Shane Landreville Stefani Lefebvre Vincent Li Ian McParland Jasmin Singh Bonita Kezia Messakh Dylan Taylor Emily Thorpe Lynn Muldoon Nicole Urban Jeremy Wiebe Matthew Wray Canadian Journal of Comparative and Contemporary Law List of Contributors Susan Barker, director of Sue Barker Charities Law, Wellington, New Zealand. Bradley Bryan, Assistant Professor, University of Victoria Faculty of Law. Reid Buchanan, Robson Hall Faculty of Law, University of Manitoba. Renate Buijze, Researcher, Erasmus School of Law, Erasmus University Rotterdam. Kathryn Chan, Associate Professor, University of Victoria Faculty of Law. Gino E Dal Pont, Professor, Faculty of Law, University of Tasmania. Michelle Gallant, Professor, Robson Hall Faculty of Law, University of Manitoba. Phillip Morgan, Senior Lecturer, York Law School, University of York. Ian Murray, Associate Professor, UWA Law School, University of Western Australia. Adam Parachin, Associate Professor, Osgoode Hall Law School, York University. Pauline Ridge, Professor, ANU College of Law, Australian National University. Natalie Silver, Lecturer, University of Sydney Law School. Canadian Journal of Comparative and Contemporary Law Volume 6 | number 1 | 2020 Issues in Charity and Non-Profit Law Articles Advocacy by Charities: What is the Question? 1 Susan Barker Indigenous Peoples, Legal Bodies, and Personhood: Navigating the 58 “Public Body” Exemption with Private Law Hybrid Entities Bradley Bryan Modernizing the ‘Definition’ of Charity: Charting the Tax Terrain of 78 Statutory Reform Reid Buchanan & Michelle Gallant Tax Incentives for Cross-border Giving in an Era of Philanthropic 109 Globalization: A Comparative Perspective Natalie Silver & Renate Buijze Constitutionalizing the Registered Charity Regime: Reflections on 151 Canada Without Poverty Kathryn Chan Charitable Un-educational Objects 191 Gino E Dal Pont Judgment-Proofing Voluntary Sector Organisations from Liability 220 in Tort Phillip Morgan Donor Advised Funds: What Can North America Learn From the 260 Australian Approach? Ian Murray Why and When Discrimination is Discordant with Charitable Status: 305 The Problem with “Public Policy”, The Possibility of a Better Solution Adam Parachin When is the Advancement of Religion Not a Charitable Purpose? 360 Pauline Ridge Advocacy by Charities: What is the Question? Susan Barker* “There are no right answers to wrong questions.” - Ursula K Le Guin Despite the decision of the Supreme Court of New Zealand in Re Greenpeace of New Zealand Incorporated, the issue of advocacy by charities remains unsettled in New Zealand, with at least three cases awaiting determination by the New Zealand courts at the time of writing. This article seeks to examine the questions that decision-makers should be asking themselves when considering the issue of advocacy by charities. First, the article considers the legal position prior to the Charities Act 2005, and concludes that New Zealand charities were able to undertake unlimited non-partisan advocacy in furtherance of their stated charitable purposes. The article then considers whether that position was changed by the Charities Act, or by the Supreme Court decision, and concludes that it was not. The article then argues that current government interpretations of the Supreme Court decision that require charities to demonstrate public benefit in all of their activities are resulting in a framework in New Zealand that is complex, highly subjective and unworkable in practice. Provided the advocacy is not partisan and complies with other general legal restrictions on speech, charities should be free to advocate for their charitable purposes as they see fit, without undue government interference. * Sue Barker is the director of Sue Barker Charities Law, a boutique law firm based in Wellington, New Zealand, specialising in charities law and public tax law. In 2019, Sue was awarded the New Zealand Law Foundation International Research Fellowship to undertake research into the question: “What does a world-leading framework of charity law look like?” This article was written in August 2019. 2 Barker, Advocacy by Charities I. Introduction II. Position Before the CHARITIES ACT III. The Test For Whether A Purpose Is Charitable A. Ascertaining an Entity’s Purposes B. The Public Benefit Test C. Was There a Political Purposes Exclusion? D. The ‘Spirit and Intendment’ Test E. Summary IV. Was The Position Changed By Passing The CHARITIES ACT? A. Unintended Consequences B. Subsection 5(3) C. Subsection 18(3) D. Subsection 5(2A) E. Section 59 F. Summary V. Did The Supreme Court Decision Change The Law? A. Greenpeace’s Purposes B. The Commission’s Decision C. The High Court Decision D. Re Draco E. Re Greenpeace HC F. The Court of Appeal Decision G. The Promotion of Peace H. Ancillary Purposes I. The Supreme Court Decision J. The Presumption of Charitability K. Manner of Promotion L. Assessing Public Benefit VI. What Is The Question Following The Supreme Court Decision? A. The Board’s Second Decision B. Freedom of Expression VII. Conclusion (2020) 6 CJCCL 3 I. Introduction he decision of the New Zealand Supreme Court in Re Greenpeace of TNew Zealand Inc1 was heralded as a victory for charities, ostensibly correcting an unduly strict approach, to the issue of advocacy by charities, that had been taken by the agencies responsible for administering New Zealand’s charities’ legislation (first, the Charities Commission, and then the Department of Internal Affairs — Charities Services Ngā Rātonga Kaupapa Atawhai (“Charities Services”) and the Charities Registration Board (the “Board”), collectively referred to below for convenience as “Charities Services”). However, in practice, Charities Services’ interpretation of the Supreme Court decision appears even more restrictive of charities’ advocacy than that impugned by the Supreme Court. Charities Services’ current approach to the issue of advocacy by charities has been described as “complex, highly subjective and … unworkable”2 in practice. It also puts New Zealand out of step with comparable jurisdictions, such as Australia and Canada. This article suggests that the Supreme Court decision did not in fact change the law in New Zealand; the law in New Zealand regarding the issue of advocacy by charities, in the writer’s respectful submission, was and remains broadly aligned in principle with the approach recently adopted in Canada: that charities may undertake unlimited non-partisan 1. [2015] 1 NZLR 169 (SC) [Re Greenpeace SC]. 2. Krystian Seibert, “Could the Charities Act 2013 Pose a Problem for Advocacy Charities?” (18 December 2018), online: Pro Bono Australia <www.probonoaustralia.com.au/news/2018/12/charities-act-2013-pose- problem-advocacy-charities/>. 4 Barker, Advocacy by Charities advocacy in furtherance of their stated charitable purposes.3 If such advocacy is in the best interests of those charitable purposes, charities in fact have a duty to undertake it. This article respectfully suggests that, when it comes to the issue of advocacy by charities, Charities Services