The effects of Better Public Media Trust v AG and what it means for advocacy charities.
The Court of Appeal decision Better Public Media Trust v Attorney-General from November 2023 lays down some guidance as to advocacy charities. In its decision, the court discussed and drew analogies from the Supreme Court judgements Re Greenpeace (SC) and Family First (SC).
The Case Facts and History
The Charities Board declined Better Public Media Trust’s (the “Trust”) application to be a registered charity under the Charities Act 2005. The Trust’s purpose is primarily to advocate for media platforms which are publicly owned. [1] In its view the Trust’s advocacy purpose of promoting public media, particularly its benefits and importance and advocating for public media’s funding and support, is not directed toward a charitable end. [2]
The High Court Judge upheld the Board’s decision, finding the advocacy purpose was not charitable as it was not beneficial to the community. [3] One reason was because there was no connection between its purpose and the public benefit. However, the Court of Appeal found the High Court erred in its decision.
Court of Appeal’s Findings
The Court of Appeal found the Trust did meet the fourth head of charitable purpose under s 5(1) of the Charities Act, being a charitable purpose “beneficial to the community”. To determine this it looked at analogous charitable objectives. It found that the Trust’s means and manner of carrying out its purposes were achieved by presenting all viewpoints in order to help inform viewers and readers of public media issues. This differed from the Trust in Family First (SC). In that case, the Supreme Court found the Trust’s means and manner of achieving its purpose were not beneficial to the community as it promoted one sided views and information only reflecting its view.
Further, the Court of Appeal did not find that there is a general prohibition on advocacy and it stated that the Trust advocating for publicly funded media does not mean it lacks a charitable purpose. [4] In Re Greenpeace (SC) advocating for environmental protection was able to be charitable; similarly, in Latimer v Commissioner of Inland Revenue advancing Māori claims before the Waitangi Tribunal were charitable as it promoted racial harmony and social cohesion. The Trust’s additional purpose of protecting and promoting democracy in New Zealand was also analogous to Re Draco Foundation (NZ) Charitable Trust.
What does this mean for charities?
It is clear that the courts determine whether a charity’s object amounts to a charitable purpose by looking to other similar charitable objectives. [5] The trust’s purpose can be determined from both its trust deed and activities. [6] Furthermore, a trust is not disqualified from being registered simply because its purposes conflict with other opinions and interests, nor because its primary purpose is advocacy. [7] However, where its purpose is primarily advocacy it seems that it is more likely to be considered charitable if it ensures opposing views are heard to inform people of all views, not just ones advocated by the trust.
It is clear that each case turns on its own facts and analogies to trusts with similar purposes. Therefore, it is difficult to draw the line of what is a charitable purpose and what is not, particularly in relation to advocacy notwithstanding the recent Supreme Court cases.
This article is intended for general informational purposes only and does not constitute legal advice. For advice specific to your situation, please contact a qualified legal professional. Reproduction is permitted with prior approval and credit to the source.
We support many charities and have prepared many free guides such as:
- Charities in New Zealand – A Legal Handbook
- Charities Healthcheck – Part 1
- Charities Healthcheck – Part 2
- Charities Healthcheck – Part 3
- Charities Healthcheck – Part 4
- Charities Healthcheck – Part 5
- Charities Healthcheck – Part 6
- Charities Governance Essentials
[1] Better Public Media Trust v Attorney-General CA171/2020 [2023] NZCA 553 at [80]-[82].
[2] Better Public Media Trust v Attorney-General at [57]-[58].
[3] Better Public Media Trust v Attorney-General at [66] and [81].
[4] Better Public Media Trust v Attorney-General at [36].
[5] Better Public Media Trust v Attorney-General at [35].
[6] Better Public Media Trust v Attorney-General at [87].
[7] Better Public Media Trust v Attorney-General at [83] and [36].
