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Charities and politics: where did we go wrong?
Published online by Cambridge University Press: 17 December 2024
Abstract
This paper examines a long-standing doctrine in charities law – that if an organisation's main purpose is political then it cannot be charitable. This doctrine is not without controversy because it has the potential to exclude many worthwhile organisations from charitable status, and fetter worthwhile advocacy by those that do have status. While no jurisdiction remains unwaveringly committed to the orthodox political purpose doctrine, we argue that none so far have confronted the public benefit – and detriment – of political advocacy adequately. This paper proposes a way of assessing the public benefit of political advocacy in liberal democratic societies. It argues that political advocacy can give rise to clear public benefit: this is an indirect or process benefit associated with advocacy itself regardless of the end advocated for. However, recognising political advocacy purposes as charitable should still be subject to two constraints: the altruism requirement (reflected in the ‘public’ aspect of public benefit); and consistency with liberal democratic values (as part of the ‘benefit’ aspect). These constraints are needed because, while political advocacy can generate benefit, detriments may also be associated with political advocacy.
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- Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of The Society of Legal Scholars
Footnotes
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Versions of this paper were presented at the Melbourne Law School Faculty Research Seminar and the Australasian Society of Legal Philosophy Annual Conference and we are grateful to participants for their insightful comments. We are also grateful to the anonymous reviewers for their helpful suggestions for improvement.
References
1 Bonar Law Memorial Trust v IRC (1933) 49 TLR 220; Re Ogden [1933] Ch 678; Re Hopkinson [1949] 1 All ER 346.
2 Bowman v Secular Society Ltd [1917] AC 406, at 442.
3 McGovern v Attorney-General [1982] Ch 321, at 340.
4 See Charity Commission for England and Wales Campaigning and Political Activity Guidance for Charities (CC9, November 2022), https://www.gov.uk/government/publications/speaking-out-guidance-on-campaigning-and-political-activity-by-charities-cc9/speaking-out-guidance-on-campaigning-and-political-activity-by-charities.
5 Charity Commission for England and Wales ‘Orlando Fraser's speech at Charity Law Association Conference 2023’, https://www.gov.uk/government/speeches/orlando-frasers-speech-at-charity-law-association-conference-2023.
6 Campaigning and Political Activity Guidance for Charities, above n 4.
7 As observed in Better Public Media Trust v Attorney-General [2020] NZHC 350, para 54 (Better Public Media Trust (HC)). See also Attorney-General v Family First New Zealand [2022] 1 NZLR 175, para 164 (per Williams J).
8 See for example, Attorney-General v Family First New Zealand, above n 7, para 142.
9 Farewell v Farewell (1892) 22 OR 573; Re Scowcroft [1898] 2 Ch 638 (discussed in Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCA 42, para 32).
10 M Chesterman ‘Foundations of charity law in the new welfare state’ (1999) 62 Modern Law Review 333, at 343 (referring to McGovern, above n 3).
11 Chesterman, above n 10, at 335.
12 National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31, at 63, 54; Aid/Watch Incorporated v Federal Commissioner of Taxation, above n 9, paras 30–31.
13 Above n 2. Some have suggested that prior to Bowman ‘[t]here was no bright line between charity and politics’ given that anti-slavery, penal reform, and temperance charities existed: S Kós ‘Murky waters, muddled thinking: charities and politics’ (Opening Address, Charity Law Association of Australia and New Zealand Conference, 4 November 2020) para [5].
14 Above n 12.
15 Above n 3.
16 National Anti-Vivisection Society, above n 12, at 49–51. See also Re Greenpeace of New Zealand Inc [2014] NZSC 105, paras 36, 60–61.
17 Above n 3, at 340.
18 McGovern was applied to deny charitable status in Southwood v Attorney General [2000] EWCA Civ 204, para 17 (education ‘in the subject of militarism and disarmament’) and Hatchett-Stamford v Attorney General [2008] EWHC 330 (Ch); [2009] Ch 173, para 16 (purpose to ban animals from performing). For further discussion of McGovern see F Weiss ‘Quot homines tot sententiae or universal human rights: a propos McGovern v. The Attorney-General’ (1984) 46 Modern Law Review 385; R Noble ‘Politics, public benefit and charity’ (1982) 45 Modern Law Review 704.
19 For an overview see S Glazebrook ‘A charity in all but law: the political purpose exception and the charitable aector’ (2019) 42 Melbourne University Law Review 632.
20 Bowman, above n 2, at 442; McGovern, above n 3, at 336–337; Southwood, above n 18, para 29 (‘the court [has] no material on which to make that choice [as to which view is for the public benefit]’).
21 National Anti-Vivisection Society, above n 12, at 62.
22 McGovern, above n 3, at 338.
23 National Anti-Vivisection Society, above n 12, at 50; Hanchett-Stamford, above n 18, para 16.
24 Slade LJ in McGovern, above n 3, at 337.
25 Ibid, at 338–339. See also JC Norton ‘Controversial charities and public benefit’ (2018) 2 New Zealand Law Journal 64 at 66.
26 Re Greenpeace of New Zealand Inc [2014] NZSC 105, paras 59–70. See also Re Collier (deceased) [1998] 1 NZLR 81 at 89–90 (HC) and Kiefel J in Aid/Watch, above n 9, paras 71–73.
27 A Parachin ‘Distinguishing charity and politics: the judicial thinking behind the doctrine of political purposes’ (2008) 45 Alberta Law Review 871; J Chia et al ‘Navigating the politics of charity: reflections on Aid/Watch Inc v Federal Commissioner of Taxation’ (2011) 35 Melbourne University Law Review 353, at 362–368. But see also Norton, above n 25.
28 [1898] 2 Ch 638.
29 Re Bushnell [1975] 1 WLR 1596, at 1605.
30 Ibid. See also Re Hopkinson [1949] 1 All ER 346.
31 See Re Bushnell, above n 29, where ‘the advancement and propagation of the teaching of socialised medicine’ was found to be political (emphasis added).
32 Southwood, above n 18, para 29.
33 Ibid.
34 Attorney-General v Family First New Zealand, above n 7, paras 66a, 91, 107a.
35 This is despite the will making no direct reference to legislative change: R Cotterrell ‘Charity and politics’ (1975) 38 Modern Law Review 471, at 473.
36 Re Koeppler's Will Trusts [1986] Ch 423.
37 Ibid, at 437.
38 Human Dignity Trust v Charity Commission for England and Wales (First-tier Tribunal (Charity), General Regulatory Chamber, Judge McKenna and Member Elizabeth, 9 July 2014).
39 Ibid, para 65.
40 Ibid, para 96.
41 Waldron, J ‘The core of the case against judicial review’ (2006) 115 Yale Law Journal 1346CrossRefGoogle Scholar.
42 Human Dignity Trust, above n 38, para 88.
43 In this regard, note Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA), where advocating not to change abortion law was seen as indistinguishable from advocating to change the law, and therefore regarded as non-charitable (at 697).
44 Charities Act 2011 (UK), s 3(1)(h).
45 Human Life International in Canada v Canada (Minister of National Revenue) [1998] 3 FC 202, para 12.
46 Income Tax Act RSC 1985 c I (5th Supp) s 149.1(6.2) (Canada).
47 Although the New Zealand position is different: Attorney-General v Family First New Zealand, above n 7, para 26.
48 This was consistent with the overall approach to charitable status in the Canadian Income Tax Act: K Chan ‘Constitutionalising the registered charity regime: reflections on Canada without Poverty’ (2020) 6 Canadian Journal of Comparative and Contemporary Law 151, at 156–157.
49 [2018] ONSC 4147.
50 Ibid, paras 70–72.
51 Ibid, paras 47–48.
52 Regan v Taxation without Representation (1983) 461 US 540. See the discussion in M Harding Charity Law and the Liberal State (Cambridge: Cambridge University Press, 2014) p 186. This position was adopted by the New Zealand Supreme Court in Attorney-General v Family First New Zealand, above n 7, paras 156–160.
53 Citizens United v Federal Electoral Commission (2010) 558 US 310 suggests that regulating the means and structures used for political expression can constitute an impermissible burden on free speech, although the implications of this decision for charities (particularly those outside the US) remain to be seen: JC Norton ‘Charities and freedom of expression’ (2019) New Zealand Law Journal 174, at 176.
54 [1981] 1 NZLR 688 (CA). See also Re Collier (deceased) [1998] 1 NZLR 81; Re Draco Foundation (New Zealand) Charitable Trust (HC Wellington CIV-2010-485-1275, 15 February 2011) and the earlier cases of Re Wilkinson [1941] NZLR 1065 and Knowles v Commissioner of Stamp Duties [1945] NZLR 522.
55 Re Greenpeace of New Zealand Inc [2014] NZSC 105, para 59.
56 Ibid, para 74.
57 Ibid, para 69.
58 Ibid, para 72.
59 Attorney-General v Family First New Zealand, above n 7, paras 126, 138.
60 Harding, M ‘An antipodean view of political purposes and charity law’ (2015) 131 Law Quarterly Review 181Google Scholar; Norton, above n 25.
61 Re Greenpeace of New Zealand Inc, above n 55, para 76.
62 Ibid, para 73.
63 Family First New Zealand v Attorney-General [2020] NZCA 366, para 138.
64 Attorney-General v Family First New Zealand, above n 7, para 131.
65 Ibid, para 153. But see the concurring judgment of Williams J, para 180.
66 National Anti-Vivisection Society, above n 12, at 47.
67 Attorney-General v Family First New Zealand, above n 7, para 138.
68 See Family First New Zealand v Attorney-General, above n 63, paras 109, 153.
69 Better Public Media Trust v Attorney-General [2023] NZCA 553 (Better Public Media Trust (CA)).
70 Royal North Shore Hospital of Sydney v Attorney-General (NSW) (1938) 60 CLR 396, at 426 (cited in Public Trustee v A-G (NSW) (1997) 42 NSWLR 600, at 602).
71 See eg Public Trustee v A-G (NSW) (1997) 42 NSWLR 600, 607. Also discussed in Chia et al, above n 27, at 358–359.
72 Aid/Watch Inc v Federal Commissioner of Taxation, above n 9.
73 Ibid, para 45.
74 This is now also recognised in legislation: Australian Charities Act 2013, s 12.
75 Aid/Watch Inc v Federal Commissioner of Taxation, above n 9, para 45.
76 A further difficulty is that the relationship between Aid/Watch, above n 9, and s 6 of the Australian Charities Act 2013 remains unclear – s 6 requires regard to be had to benefits and detriments to determine public benefit, but Aid/Watch seems to rule as a matter of law that political advocacy enhancing representative and responsible government within the Australian constitutional order is of public benefit. How does this ruling fit with the balancing exercise required by s 6?
77 Harding, above n 52, pp 88–92.
78 [1962] 1 Ch 832, at 853.
79 [2012] 2 WLR 100 (UT), para 37.
80 [1943] 2 All ER 101, at 105.
81 Aid/Watch Inc v Federal Commissioner of Taxation, above n 9, paras 45–47.
82 Chia et al, above n 27, at 385. Other commentators have also made this point, eg E Clark ‘The limitation on political activities: a discordant note in the law of charities (1960) Virginia Law Review 439; GFK Santow ‘Charity in its political voice – a tinkling cymbal or a sounding brass?’ (1999) 18 Australian Bar Review 225. See also Harding, above n 52, p 189.
83 Harding, above n 52, p 191.
84 Mermaids v Charity Commission for England and Wales & LGB Alliance [2023] UKFTT 563 (GRC), para 68.
85 Harding, above n 52, p 191.
86 Chia et al, above n 27, at 366.
87 Harding, above n 52, pp 190–191. See also Chia et al, above n 27, at 385.
88 Chesterman, above n 10, at 344.
89 Ibid, at 346.
90 Ibid, at 348.
91 Ibid.
92 Recognised in New Zealand in the Court of Appeal decision Better Public Media Trust (CA), above n 69.
93 Eg Re Koeppler's Will Trusts, above n 36.
94 Indeed, in New Zealand, the end sought also must be charitable, not just the means and manner.
95 Family First, above n 7, para 168.
96 Ibid, para 172 (Williams J).
97 Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297.
98 See the difficulties discussed in the various judgments in Oppenheim ibid.
99 Harding, above n 52, p 200.
100 Ibid, p 198.
101 Ibid, p 199.
102 Ibid, pp 200-201. But note also Penner, J E ‘Autonomy, religion and politics: reflections on Matthew Harding's Charity Law and the Liberal State’ (2016) 41 Australian Journal of Legal Philosophy 126, at 136–138Google Scholar.
103 Harding, above n 52, p 200.
104 Public Trustee v A-G (NSW) (1997) 42 NSWLR 600, at 608.
105 Norton, above n 53, at 177.
106 Raz, J ‘Human rights without foundations’ in Besson, S and Tasioulas, J (eds) The Philosophy of International Law (Oxford: Oxford University Press, 2010)Google Scholar.
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108 For a fuller exploration of how liberal philosophical commitments can underpin charity law see Harding, above n 52.
109 Chia et al, above n 27, at 391.
110 Harding, above n 52, p 193; M Turnour and E Turnour ‘Archimedes, Aid/Watch, constitutional levers and where we now stand’ in M Harding et al (eds) Not-for-Profit Law: Theoretical and Comparative Perspectives (Cambridge: Cambridge University Press, 2014) p 37, at p 56.
111 Family First, above n 7, para 137.
112 Catholic Care [2010] EWHC 520 (HC), paras 97–99.
113 Public Trustee v AG (NSW) (1997) 42 NSWLR 600. Santow J's point here, however, was not about the value of non-discrimination but rather that there may be no violation of the orthodox political purpose rule at all in such cases because the advocacy is consistent with the trend in law and policy towards anti-discrimination. See also Santow, above n 82, at 234.
114 Better Public Media Trust (CA), above n 69, paras 84, 89, 99.
115 Mermaids v Charity Commission for England and Wales and LGB Alliance [2023] UKFTT 563 (GRC) para 66.
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119 Harding, above n 52, p 237.
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121 Harding, above n 52, p 237.
122 National Anti-Vivisection Society, above n 12.
123 Harding, above n 52, p 194. See also C Brettschneider When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality (Princeton: Princeton University Press, 2012) where the author distinguishes between expressive and coercive state action.
124 For discussion of discrimination by charities outside of the advocacy context see Harding, above n 52, ch 7.
125 Ibid, p 190.
126 Family First, above n 7, para 181.
127 Ibid, para 180.
128 Ibid, para 177.
129 Ibid, para 175.
130 Aid/Watch Inc v Federal Commissioner of Taxation, above n 9, para 58.
131 Better Public Media Trust (CA), above n 69, para 93.
132 Ibid, para 96.
133 Ibid, para 104.
134 Chia et al, above n 27, at 376.
135 Ibid, at 381.
136 Harding, above n 52, p 195.