FAMILY FIRST NEW ZEALAND V ATTORNEY-GENERAL [2020] NZCA 366 Court of Appeal of New Zealand, Clifford, Gilbert and Stevens JJ, 27 August 2020 Appeal seeking registration of a charity with a purpose of promoting traditional family values Key words: Charity, New Zealand, Charitable Purposes, Advocacy, Family, Ancillary Purposes, Education, Fourth Head, Human Rights 1. Family First New Zealand (Family First) was first deregistered by the New Zealand Charities Registration Board (the Board) in 2013, and over the next seven years, there were five decisions about their charitable status (Family First New Zealand v Charities Registration Board [2018] NZHC 2273; Family First New Zealand [2015] NZHC 1493). 2. In a split decision Clifford and Stevens JJ, Gilbert J dissenting, the Court of Appeal set aside the Board’s decision and declared that Family First qualified for registration under the Charities Act 2005 (NZ). 3. Family First takes a relatively traditional approach to the importance of families and marriage. Since its establishment in 2006 it has engaged in community discussions on divorce, prostitution, pornography, broadcasting standards and censorship, availability of alcohol and tobacco, gambling, abortion, euthanasia, embryonic cell research and the “anti-smacking” legislation. It has done this in many ways including published opinions, polemics and dissemination of various forms of research. First deregistration decision1 4. Family First was registered by the Board in 2007, but was deregistered in 2017. The Board summarised their reasons as follows (at [18]): First, the Trust’s main purpose is to promote points of view about family life, the promotion of which is a political purpose because the points of view do not have a public benefit that is self-evident as a matter of law. The Board’s view on the Trust’s main purpose is to promote the view that the “natural family” (defined by the union of a man and a woman through marriage) is the fundamental social unit, and should be supported as such to the exclusion of other family forms (described by the Trust as “incomplete or fabrications of the state”). Secondly, the Board considers that the Trust’s purpose to promote points of view about family life is not a charitable purpose to advance religion or education, nor a purpose beneficial to the public within the 1 Family First New Zealand (CC42358) Charities Board Decision 2013-1, 15 April 2013 fourth category of charity at general law. Thirdly, the Board considers that the Trust has an independent purpose to procure governmental actions (including legislation, policies and governmental decisions) consonant with the Trust’s point of view. This purpose to procure governmental actions is a political purpose that is not charitable, and is not ancillary to any valid charitable purpose of the Trust. The appeal against first deregistration decision 5. The appeal to the High Court was delayed until the decision in Re Greenpeace of New Zealand Inc [2014] NZSC 105 was handed down in the Supreme Court of New Zealand. That Court held by a majority, contrary to earlier authority, that the Charities Act (2005) (the Act) does not create a general exclusion of advocacy from charitable purposes, even where it is more than an ancillary purpose, and there is no standalone doctrine of exclusion of political purposes. 6. In Family First new Zealand [2015] NZHC 1493, the High Court held that the Board’s fundamental proposition, that Family First’s political objectives could never be charitable, could not be reconciled with the approach taken by the majority of the Supreme Court in Greenpeace and thus was incorrect. Further, it prompted the Board to consider whether Family First had a charitable education activity for the public benefit. The Board was directed to reconsider the question of Family First’s registration. Second deregistration decision2 7. Family First made further submissions to the Board on the basis that (relying on the fourth head) its purposes were either analogous to purposes the courts have previously accepted as being charitable — the promotion of moral and mental improvement — or, relying on the second head, involved the advancement of education. 8. The Board again refused registration on the basis that Family First’s advocacy could not be regarded as for the benefit of the public and although one piece of their research might be of educational value, Family First did not present the results objectively, but merely to persuade the reader to a particular point of view consistent with their own. High Court Judgement in 2018 9. The High Court disallowed the appeal in Family First New Zealand [2018] NZHC 2273. If Family First’s purposes were solely to promote the role of the Family, it would have a strong claim to charitable status, but the Court found other non-charitable purposes, such as to promote life by reducing access to abortion, and opposing legislation enabling assisted death disqualified it from charitable status. Further, even if there were an educative aspect to Family First’s activities, this was not its only purpose. Its other purposes and activities could not be regarded as ancillary to any educative purpose. Family First appealed to the Court of Appeal. The Court of Appeal decision Family First’s submissions to the Court of Appeal 2 Family First New Zealand (CC10094) Charities Board Decision 2017-1, 21 August 2017 [Second deregistration decision]. 10. Family First submitted that: - It was sufficient for Family First to show it had a purpose of advancing education or a purpose within the fourth head of charity which is also for the public benefit, provided that any other purposes are ancillary to these charitable purposes. The need to demonstrate public benefit is only required under the fourth head of charity, where the purpose is analogous to existing cases. - That one should merely examine the Family First trust deed objects, and that an entity’s activities will only be relevant where its constituent documents do not disclose its purpose or where there is evidence of activities that displace or belie its stated charitable purpose. - Family First’s promotion of the traditional family unit was not discriminatory and contrary to human rights law, but a reasonable view protected by the New Zealand Bill of Rights Act 1990 (NZBORA). - Family First’s trust deed objects included an educational purpose and public benefit could therefore be presumed. The Attorney-General’s submissions to the Court of Appeal 11. The Attorney-General submitted that: - Family First’s contention that its activities benefited all forms of families could not be sustained on the evidence. - Family First did not establish that its principal purpose, advocacy on behalf of the traditional Family, was of public benefit or was sufficiently analogous to any purpose previously accepted as charitable. Charity Law Association of Australia and New Zealand (CLAANZ) as Intervenor 12. CLAANZ’s submissions were: - where an organisation’s purpose does not entail a service provision, the public benefit test will depend on the existence of wider benefits to the community. - that the possibility of incidental wider benefits arising from the fact of political advocacy itself should be considered, irrespective of the end advocated (Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42). - that removal of a subsidy to a previously registered charitable entity could result in an unreasonable limitation on that party’s right to freedom of expression. Clifford and Stevens JJ 13. The majority dealt with the case by posing three broad questions (at [59]): (a) Was the High Court wrong to conclude that Family First is not a trust for, presumptively charitable, educational purposes? (b) Was the High Court wrong to conclude that Family First was not a trust for a fourth head charitable purpose, namely that of promoting families and marriage as of benefit and good to society? (b) If the answer to either of those questions is yes, does Family First have non-charitable purposes of more than an ancillary nature which, notwithstanding, disqualify it from registration as a charity? Approach to establishing the Purpose of Family First 14. The majority declared that the purposes of an entity may be expressed in its statement of objects or may be inferred from the activities it undertakes, as per s 18(3) of the Charities Act, affirming the view as expressed in Re Greenpeace of New Zealand Inc [2014] NZSC 105. The majority found that Family First’s objects in its trust deed, on their face, promote the advancement of education and were for a public good. After examining a cross-section of publications by Family First, the majority found its activities were broadly consistent with its objects expressed in its trust deed (at [113]). Whether charitable under the fourth head and of public benefit 15. Family First asserted that it was a trust established to promote and support (that is, to advocate for) self-evident public goods, the institutions of the family and marriage. Consequently, this is a fourth head charitable trust established for matters which are beneficial to the community in the relevant sense. 16. The majority saw its task as the “assessment of whether there is public benefit in a charitable sense therefore requires consideration of the end promoted and the means and manner of that promotion” (at [136]). The majority agreed with the High Court that an overall objective of supporting, in a selfless way, the role and importance of families and marriage would not be self-evidently beneficial, in an analogously charitable sense, as a public good (at [138]). 17. They pointed to international conventions and treaties dealing with families in society as well as social research on disadvantage. The majority stated that it “would be curious if promotion of what the Board called the “traditional family” would cease to be of public benefit because there is a growing acceptance of other forms of stable family life, including within whānau and hapū relationships” (at [147]).