Better Public Media Trust (“Trust”) applied to be a registered charity under the Charities Act 2005. Their application was denied by the Charities Registration Board (“Board”),and a subsequent appeal to the High Court was dismissed. The Trust successfully appealed the decision to the Court of Appeal.
The Trust was incorporated in 2013 with the purpose of advancing public media in New Zealand through education and improved access to funding and acting as an advocate for media audiences. However, the Board declined to register the Trust as a charity as it did not consider the Trust’s purposes to be charitable.
The High Court determined that the Trusts primary purpose was advocacy and did not see any connection to a public benefit. As such, they determined that the Trust does not have a charitable purpose.
It was undisputed that the Trust’s primary purpose is to advocate for the provision of public media.
The Trust took issue with the analysis of its purposes in the High Court and argued that the Court conflated the task of determining the Trust’s purposes with analysing the means and manner by which those purposes are carried out.
The Court of Appeal identified three main purposes from the trust deed:
1. Promoting public media in New Zealand;
2. Supporting improved access to funding, operating conditions and platforms of distribution for use by providers; and
3. Advancing the case for public media including through supporting relevant public funding models.
The Court then assessed whether the Trust’s activities demonstrate sufficient public benefit to be recognised as charitable. They concluded that the Trust’s objectives are clearly focused on enhancing democratic and social values through the advancement of public media and are beneficial to the community.
The Trust achieves its purposes through a variety of activities including conducting independent research, commissioning public lectures, providing expert commentary and promoting the concept of public media in secondary schools through an annual competition. The Court concluded that the Trust undertakes its advocacy in a balanced and measured manner.
Section 13 of the Act sets out the “essential requirements” for an entity to qualify for registration as a charity. A trust which seeks to be registered as a charity does not need to have been established or maintained exclusively for a charitable purpose however, the income received by the trust must be for a suitable charitable purpose
The definition of “charitable purpose” was taken from Special Commissioners of Income Tax v Pemsel where it was said there are four main categories of charitable trusts:
1. Trusts for the relief of poverty;
2. Trusts for the advancement of education;
3. Trusts for the advancement of religion; and
4. Trusts for other purposes beneficial to the community, not falling under any of the preceding heads.
The Court highlighted that even if the trust has an ancillary non-charitable purpose alongside a charitable purpose they can still qualify as a charitable trust.
It was also noted that any trust solely focused on political advocacy will not qualify. Such advocacy must only be ancillary to a charitable purpose. However,charitable and political purposes are not mutually exclusive. Advocacy which might involve law and social reform should not automatically be precluded from recognition as being charitable.
The Court first considered Re Greenpeace New Zealand Inc (SC) as it is one of the leading cases on charitable trusts. In that case, the Board rejected Greenpeace’s application as they did not consider their advocacy objectives to be “capable of being for the benefit of the public.”
However, the Supreme Court concluded that advocacy for the protection of the environment is capable of being charitable and it was therefore held that Greenpeace’s advocacy activities are for a charitable benefit.
The Court considered the activities of Greenpeace to be analogous to those of the Trust despite the differences in their activities as both are driven by altruistic goals. They went on to note that there can be no suggestion that Greenpeace’s advocacy role is any more or less important than that of the Trust as both are important in a free and healthy democracy.
Another analogy was drawn with Latimer v Commissioner of Inland Revenue where it was held that the trust was charitable because its activities were directed towards racial harmony and social cohesion. This was considered to be similar to one of the Trust’s purposes which is to promote social cohesion through educating the public and counterbalancing misleading and polarising media activity.
The Court also recognised that the Trust’s purposes mirror those in Re Draco Foundation (NZ) Charitable Trust where it was found that promoting democracy and natural justice in New Zealand constituted a charitable purpose. The Trust’s overarching purpose is clearly linked to the protection and promotion of democracy in New Zealand.
The Court concluded by contrasting the purpose and activities of the Trust with those of Family First. Family First were unsuccessful in their application for two main reasons:
1. Their purpose was considered discriminatory by the Court and therefore cannot be compatible with a charitable purpose. In addition, unlike Greenpeace, the advocacy undertaken by Family First is not advocacy for ends that are themselves charitable.
2. They failed to establish that their engagement in contentious political issues was only ancillary to their broader purpose.
The Court concluded that the Trust, unlike Family First, endeavours to present a range of viewpoints and assist in informing consumers of the issues associated with public media. It was also noted that the Trust’s activities are more aligned with being educational rather than adversarial.
The Court of Appeal concluded that the Trust meets the criteria for registration under the fourth category of charitable purposes outlined earlier. As such, the Court:
1. granted the application for leave to adduce further evidence.
2. allowed the appeal.
3. said that the Better Public Media Trust should now be registered as a charity under the Charities Act 2005with effect from the date of its application.
For further information on this case or similar issues, Director, Brigitte Morten
