Case Brief: Attorney-General v Family First New Zealand [2022] NZSC 80

July 14, 2022

Summary

The Supreme Court held Family First no longer qualifies for charitable registration under the Charities Act 2005 (“the Act”).

 

Background

Family First was incorporated under the Charitable Trusts Act 1957 in 2007. The purpose of Family First is to provide advocacy and education for social issues affecting families. Family First promotes a conservative view of the family model and community values.  

In 2013 the Charities Registration Board de-registered Family First as a charity on the grounds its views were one-sided and not educational, and its primary purpose was political.

In 2014, the Supreme Court in Re Greenpeace held that a political purpose would not necessarily prevent an entity from obtaining registration. Following this decision, the High Court ordered the Family First matter be referred back to the Board for reconsideration. The Board concluded again that Family First be de-registered.

Family First appealed the decision in the High Court. The appeal was dismissed. This was reversed in the Court of Appeal. The Attorney-General appealed to the Supreme Court.

 

The Case

Does Family First advance charitable education?

The Court considered expounding a viewpoint would not necessarily disqualify an entity from charitable status. However, the purpose of the entity must be to educate rather than advocate. The means adopted should also be balanced and objective.

O’Regan J acknowledged Family First’s position that family arrangements outside the traditional nuclear family model are inferior, and marriage should only be between a man and a woman. Family First also advocated for reforms to prevent abortion and euthanasia.

The Court saw many of the Family First’s commissioned reports as consistent with the Attorney-General’s contention the papers were written from a particular viewpoint. While not in itself fatal, the papers were not written in an objective and balanced way. This made the papers more akin to advocacy or propaganda rather than education. This was in contention in the2020 Greenpeace decision, where Mallon J ruled it was sufficient to show the research was commissioned and publicly available.

Does Family First’s support of family and marriage advance objectives of general benefit to the community?

The Court held the purposes of Family First were inherently discriminatory. The entity’s purposes affirmed the traditional man/woman model as “the natural family” which cannot be “re-defined by social engineering”. They also claimed the marital union is “the authentic sexual bond, the only one open to the natural and responsible creation of new life”. The High Court judge had noted Family First sought measures which preferred the traditional family over others, such as amending tax and welfare law to eliminate any disincentives to marry. It also advocated for removal of no-fault divorce, and placing the weight of the law on the side of the spouse resisting divorce.

The Court held none of these goals were self-evidently beneficial. The Court concurred with the High Court Judge that a purpose to discriminate is incompatible with a charitable purpose.

 

Does Family First have non-charitable purposes that are more than merely ancillary?

The Court held Family First’s community engagement on issues such as abortion, euthanasia, prostitution and censorship were not included in its broader purpose of supporting family and marriage. This can be contrasted with Greenpeace, where the purposes of peace, nuclear disarmament and de-proliferation of WMDs were ancillary and contributed to Greenpeace’s purpose of protecting the planet. Family First had to establish this additional advocacy was itself charitable. The Court deemed this impossible, as they were free-standing political issues.

Family First identified a number of charities with opposing ‘liberal’ ideologies that had achieved registration. The Court did not accept the suggestion liberal entities and causes were favoured over conservative. “In principle, an entity that has non-ancillary purposes of advocacy in free-standing issues will not be entitled to charitable status, whatever the side of the debate it is on.”

 

Fiscal considerations

The Charity Law Association of Australia and New Zealand(“CLAANZ”) suggested the tax implications of becoming a charity should not influence decision makers. CLAANZ also submitted the withdrawal of charitable status of an entity that engages in political advocacy may breach its right to freedom of expression. The Court noted the arguments were contradictory and rejected them both, citing Greenpeace.

 

Additional comments from Williams J

Williams J agreed with the conclusions made by the Court and provided additional comments on the matter of charitable purpose. Williams J stated an advocacy group addressing a controversial topic in a fair and balanced way can still be charitable, even if it ultimately favours one side or another. Despite this, Family First’s manner and means of execution were neither fair, balanced, nor respectful, and failed to meet this threshold.

 

Result

The Supreme Court held the Charities Registration Board was correct to remove Family First from the register. The declaration made by the Court of Appeal that Family First qualifies for registration under the Charities Act was set aside.

This case has invited controversy due to its differences with the Greenpeace decision. Further deliberation in the courts may be required to determine which decision better characterises the law, and how the two can be harmonised. To learn more about the Greenpeace decision, read our case brief here.

The Government has also announced that this year they will introduce a Bill that will modernise the Charities Act. The current scope of the new Bill does not address the issues raised in this case.

To understand more about this case, please contact Director Brigitte Morten.

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