Emil Ford Lawyers

Promoting the ties that bind us

 

Last year, a New Zealand charity which seeks to promote strong families, traditional marriage and the value of life had its charity status and its entitlement to tax benefits stripped by the New Zealand Charities Registration Board. In August 2018, the High Court of New Zealand confirmed Family First New Zealand’s de-registration after finding that it did not exist solely for charitable purposes. We understand that Family First has lodged an appeal of this decision.  

What is the charity?

Family First’s objects include promoting and advancing research and policy supporting marriage and family, participating in social analysis and debate about issues relating to and affecting families, producing and publishing relevant and stimulating material relating to issues affecting families and being a voice for the family in the media and speaking up about issues relating to families.

The High Court heard that Family First seeks to limit the concept of marriage to a union between men and women, seeks to have the tax and welfare system amended to “eliminate disincentives” to marriage and advocates for the abolition of no-fault divorce. The Board considered these views and Family First’s activities when it deregistered the charity in 2017.

Why was it deregistered?

New Zealand cases have established that an organisation can be registered as a charity if it meets two key requirements:

  • Its purposes must be exclusively charitable; and
  • It must be for the public benefit.

Family First did not satisfy either requirement.

In New Zealand, as in Australia, advancing education is a charitable purpose. Family First unsuccessfully argued that the pamphlets, booklets and other materials it produced about issues such as abortion, euthanasia, parent time with children, alcohol and sex education demonstrated that it had a purpose of advancing education. The Board disagreed. It concluded that for an organisation to have a purpose of advancing education, “the information must be presented in a balanced, objective and neutral manner, so that the reader can form a view themselves, rather than expressing one-sided perspective intended to persuade the public to a particular point of view.”

Family First did not do this. When it presented results and disseminated research through its publications, the Board held that it did so predominantly to advance its point of view.

What did the High Court say?

The High Court agreed with the Board. It said that Family First’s primary activity is advocacy for a specific viewpoint, which it carries out by holding an annual conference and publishing material that contains opinion and information supportive of its viewpoint.

The High Court said that there was a distinction between promoting the role of family in society and promoting one form of family. The former was charitable status but the latter was not. The High Court said that an organisation that first and foremost promotes the traditional family unit cannot be for the public benefit because this model runs contrary to human rights law which now prohibits discrimination on this basis. The High Court also noted other obstacles to Family First’s charitable status, including its advocating for the lessening of access to abortion and for its rejection of any legislation enabling assisted death.

The implications for Australian charities

Australian charities which advocate for heterosexual marriage might be unsure about the impact of this case. The Salvation Army in Australia has publically expressed concern that its charitable status could be at risk due to the recent legalisation of same-sex marriage. However, an Australian High Court case in 2010 confirmed that advocacy does not disqualify a charity from maintaining charitable status. In that case, “the generation by lawful means of public debate … concerning the efficiency of foreign aid directed to the relief of poverty” was a charitable purpose beneficial to the community. We remind charities that if the charity has a main purpose that is charitable, such as advancing religion or advancing education, and its main purpose is for the public benefit, then the charity is permitted to have purposes or engage in activities that are non-charitable as long as that purpose or activity is:

  • incidental or ancillary to the charity’s main charitable purpose; and
  • not engaging in, or promoting, activities that are unlawful or contrary to public policy; and
  • not promoting or opposing a political party or a candidate for political office.

We will follow the anticipated appeal closely and provide you with updates. For more information, please contact , or

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