Controversial or Discriminatory Purposes after Family First
SAMUEL CHU* ∙ January 17, 2023 ∙ ARTICLE
In Matthew 28:19-20, the Christian Bible sets out Jesus Christ’s Great Commission – that is, to “go and make disciples of all nations … teaching them to obey everything I have commanded you.”[1] Throughout his life, Bob McCoskrie, a Christian religious leader and former radio and television presenter from the North Island of New Zealand, appears to have taken Jesus Christ’s message to heart, at least in relation to engaging with the public debate in New Zealand. In 2006, McCoskrie established a not-for-profit organisation to provide him with a platform to “influence public policy affecting the rights and protection of families” and to otherwise “promote a culture that values the family.”[2] This organisation was aptly named ‘Family First.’
Family First became one of New Zealand’s most prominent conservative Christian advocacy organisations (presumably taking full advantage of New Zealand’s protections for freedom of expression in the New Zealand Bill of Rights Act 1990 (NZ))[3]. However, after Family First encountered some controversy whilst engaging in its advocacy activities, the New Zealand Government – and specifically, its Charities Registration Board, which determines whether New Zealand not-for-profit organisations can be registered as charities – took notice of Family First’s work, and Family First subsequently became embroiled in nearly a decade of litigation over whether it was entitled to registration as a charity in New Zealand.
Family First’s ‘David-and-Goliath’ legal battle with the New Zealand Government regarding its charity registration status was ultimately unsuccessful. In June 2022, the Supreme Court of New Zealand – the country’s final court of appeal – ruled in Attorney-General v Family First New Zealand (‘Family First SC’)[4] that Family First was not entitled to registration as a charity, as Family First was not established for the “advancement of education,” or for “other purposes beneficial to the community.”[5] On its own, the Supreme Court’s conclusion appears relatively benign. However, a closer consideration of the Supreme Court’s conclusion raises more questions than it answers – notably, some aspects of the Supreme Court’s reasoning would detract from charities’ free speech and advocacy rights, if such reasoning were to be transported across the English Common Law world (in spite of the differing constitutional and legislative frameworks that apply across the jurisdictions).
The Supreme Court’s reasoning could be summarised as follows: firstly, Family First’s purposes were “discriminatory,”[6] and its advocacy in furtherance of these purposes did not have the requisite “balance or neutrality,”[7] and was otherwise not “fair, balanced or respectful;”[8] secondly, as Family First’s purposes were discriminatory, these purposes were not “self-evidently beneficial”[9] and any potential benefits were arguably outweighed by potential detriments arising from these purposes;[10] and lastly, as Family First’s purposes were not self-evidently beneficial (that is, Family First’s purposes were not for the public benefit), Family First was not charitable.[11] This finding, whilst so very simple, is extraordinary. Moreover, this finding runs counter to the pre-existing approaches taken by other jurisdictions – by way of example, transposing this finding to the Australian context (which has constitutional protections for “freedom of political communication”)[12] or the American context (which has even stronger constitutional protections for “the freedom of speech,”[13] including in situations where such speech is partisan in nature,[14] or otherwise disparaging or controversial)[15] is impossible at this stage; nay, borderline unimaginable.
It is respectfully suggested that the Supreme Court’s reasoning in Family First SC should be treated with caution in other English Common Law jurisdictions at this stage, especially given that Family First SC’s conclusions have been broadly lamented by practitioners and scholars across the English Common Law world. Adam Parachin, a leading Canadian charity law scholar, has argued that the Supreme Court’s judgement provides little justification for its potential finding that socially conservative views are automatic “anti-requisites for charitable status.”[16] Sue Barker, a New Zealand charity lawyer, expressed regret that Family First SC may be used as a tool to silence speech from groups or organisations that dissent from the prevailing view of the New Zealand Government.[17] Anne Robinson and I have suggested that the Supreme Court’s attempts to ‘cast a wider net’ and increase the number or types of charities that might be deemed by a regulator to be non-charitable through falling foul of a judicial or statutory ‘public policy’ doctrine (like those found in Australia or the United States, which prevent charities from being registered if their purposes are contrary to a fundamental ‘public policy’ of the government of the day[18]) could not apply in Australia, because Australia’s constitutional and statutory frameworks protect political communication and ultimately charities’ rights to engage in issue-based advocacy in furtherance of their charitable purposes.[19]
Further, it is also respectfully suggested that Family First SC’s conclusions should not be used to expand the remit of the ‘public policy’ doctrine in other English Common Law jurisdictions; rather the remit of the ‘public policy’ doctrine should remain narrow. Charities should only be deregistered by virtue of having purposes that are ‘contrary to public policy’ only in the most extreme instances of discrimination or other illegality. Courts in other English Common Law jurisdictions would be better served by instead allowing charities to engage in advocacy in furtherance of ‘controversial,’ and even ‘discriminatory,’ purposes relating to unsettled issues – without such organisations risking their charity status (as was the case with Family First). After all, the “idiosyncratic inferences of a few judicial minds”[20] should not dictate whether purposes relating to unsettled issues are too ‘controversial’ or ‘discriminatory’ to be ever regarded as charitable.
The shifting sands of public debate may ultimately lead to regulators or courts choosing not to heed the above suggestions.[21] If Family First SC emboldens regulators or courts across the English Common Law world to deregister more charities that engage in ‘controversial’ advocacy that dissents from the prevailing viewpoints of the day, regulators and courts should not be surprised if charities feel ‘muzzled’ or ‘silenced’ by regulators or courts. These charities could ultimately disengage from the public square, and reduce their charitable activities – this would be a regrettable outcome, one which regulators and courts would do well to avoid or otherwise prevent.
* Lawyer, Supreme Court of New South Wales, Australia. L.L.B., The University of Sydney, 2021, B.Sc., The University of Sydney, 2019.
[1] Holy Bible, Matthew 28:19-20 (New International Version, 2011).
[2] Family First New Zealand, ‘Introducing the Family First Lobby’ (Media Release, 31 March 2006).
[3] New Zealand Bill of Rights Act 1990 (NZ) section 14.
[4] [2022] NZSC 80.
[5] These are two of the four charitable purposes in Charities Act 2005 (NZ) section 5(1).
[6] Attorney-General v Family First New Zealand [2022] NZSC 80, [137].
[7] Id. at [107].
[8] Id. at [181].
[9] Id. at [138].
[10] Id. at [138].
[11] Id. at [107] and [149].
[12] Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539, 556.
[13] U.S. Const. amend. I.
[14] See, e.g., Citizens United v Federal Election Commission, 558 U.S. 310 (2010).
[15] See, e.g., Matal v Tam, 137 S. Ct. 1744 (2017).
[16] Myles McGregor-Lowndes and Frances Hannah, ‘ACPNS Legal Case Notes Series: 2022-93 Attorney General v Family First New Zealand’ (Case Note, 3 July 2022) at 18 (Adam Parachin).
[17] Id. at 11 (Sue Barker).
[18] In Australia, see Charities Act 2013 (Cth) section 11(a). In the United States, see Bob Jones University v United States, 461 U.S. 574, 592 (1983).
[19] Myles McGregor-Lowndes and Frances Hannah, ‘ACPNS Legal Case Notes Series: 2022-93 Attorney General v Family First New Zealand’ (Case Note, 3 July 2022) at 14 (Anne Robinson and Samuel Chu).
[20] Re Millar [1938] 1 DLR 65, 69 (Sir Lyman Duff CJC).
[21] See, e.g., Obergefell v Hodges 576 U.S. 644, 711 (2015) (Roberts CJ, dissenting) regarding the potential for United States religious organisations to lose access to federal income tax exemptions if they advocate or promote the ‘traditional’ definition of marriage going forward.