ATTORNEY-GENERAL v FAMILY FIRST NEW ZEALAND [2022] NZSC 80

ATTORNEY-GENERAL v FAMILY FIRST NEW ZEALAND [2022] NZSC 80 [28 June 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 79/2020[2022] NZSC 80BETWEEN ATTORNEY-GENERALAppellantAND FAMILY FIRST NEW ZEALANDRespondentHearing:Furthersubmissions:24 and 25 June 202113 July 2021Court: Winkelmann CJ, William Young, Glazebrook, O'Regan andWilliams JJCounsel: P J Gunn and A P Lawson for AppellantI C Bassett for RespondentJ J Batrouney QC and K G Davenport QC for Charity LawAssociation of Australia and New Zealand as IntervenerJudgment: 28 June 2022JUDGMENT OF THE COURTA The appeal is allowed.B The declaration made by the Court of Appeal that therespondent qualifies for registration under the CharitiesAct 2005 is set aside.C There is no order as to costs.____________________________________________________________________REASONSPara NoWinkelmann CJ, William Young, Glazebrook and O'Regan JJ [1]Williams J [163]WINKELMANN CJ, WILLIAM YOUNG, GLAZEBROOK AND O'REGAN JJ(Given by O'Regan J)Table of ContentsPara NoIntroduction [1]Background [4]Statutory context [8]Issues [15]Considering activities as well as the constitution? [20]High Court and Court of Appeal [21]Our assessment [23]Appellant's table of Family First's activities [32]Second head: Advancement of education [39]High Court [41]Court of Appeal [45]Legal test to be applied [50]Trust Deed and statement of principles [69]Research reports [84]Forum on the Family [95]Virtual reading room [96]Participation in public discourse [100]The appellant's table [104]Are Family First's non-charitable purposes ancillary to its charitablepurposes? [105]Comparing this case to Greenpeace 2020 [106]Conclusion [107]Fourth head: Beneficial to the community [109]High Court judgment [110]Court of Appeal [113]Self-evident benefit? [120]Legal test to be applied: Greenpeace (SC) [125]Application to Family First [131]High Court and Court of Appeal [132]Appellant's submission [133]Family First's submission [134]Our assessment [135]Conclusion [149]Rule 20A notice: Molloy [150]Fiscal considerations [154]Section 14 of the Bill of Rights [156]Result [161]Costs [162]Introduction[1] The Attorney-General, in his capacity as Protector of Charities, appeals againsta judgment of the Court of Appeal in which it allowed an appeal to that Court byFamily First New Zealand (Family First) and made a declaration that Family Firstqualifies for registration under the Charities Act 2005.1 The Court of Appeal also setaside the decision of the Charities Registration Board | Te Rātā Atawhai (CharitiesRegistration Board) to remove Family First from the Charities Register.[2] Family First gave notice under r 20A of the Supreme Court Rules 2004 of itsintention to support the judgment of the Court of Appeal on grounds not relied on bythat Court.2[3] The Charity Law Association of Australia and New Zealand (CLAANZ) wasgiven leave to intervene and its counsel made both written and oral submissions.Background[4] Family First was established by a trust deed entered into on 26 March 2006.We will call this the Trust Deed.3 It was incorporated under the Charitable Trusts Act1957 on 6 April 2006. It was originally known as "Family First Lobby", but changedits name to Family First New Zealand later in 2006. It applied for registration underthe Charities Act in February 2007 and was registered on the Charities Register witheffect from 21 March 2007. The Trust Deed provides that the trustees governFamily First, but there is also a Board of Reference, which is not referred to in theTrust Deed.4 One of the founding trustees, Mr McCoskrie, is the National Director ofFamily First.[5] On 15 April 2013, the Charities Registration Board resolved to de-registerFamily First as a charity under s 32(1)(a) of the Charities Act.5 From the perspectiveof the Board, Family First no longer qualified for registration as a charitable entity for1 Family First New Zealand v Attorney-General [2020] NZCA 366, (2020) 5 NZTR ¶30-013(Clifford, Gilbert and Stevens JJ) [CA judgment]. This Court granted leave to appeal, theapproved question being whether the Court of Appeal was correct to allow the appeal to that Courtfrom the High Court: Attorney-General v Family First New Zealand [2020] NZSC 151, (2020) 29NZTC ¶24-087.2 See below at [18](a) and [150]–[153].3 The Trust Deed has been amended at various times, but not in a manner that is material to theissues in the appeal.4 The evidence does not disclose what role the Board of Reference has, nor how its role relates tothat of the trustees.5 Family First New Zealand (CC42358) Charities Registration Board Decision 2013-1, 15 April2013 [First deregistration decision].three reasons. First, its main purpose was political and thus non-charitable — it soughtto advance points of view about family life which had no self-evident public benefitas a matter of law. Second, its viewpoint expression was not a charitable purpose forthe advancement of religion or education. Nor was it generally beneficial. Third, theBoard considered Family First had an independent purpose of procuring governmentalaction consonant with Family First's own viewpoints.6[6] On 27 May 2013, Family First appealed to the High Court. The hearing of thatappeal was deferred until after the delivery of this Court's decision in Re Greenpeaceof New Zealand Inc, which took place on 6 August 2014.7 After delivery of theGreenpeace (SC) decision, Family First's appeal was heard by the High Court. Theappeal was allowed and the matter was referred back to the Charities RegistrationBoard for reconsideration.8[7] The Charities Registration Board then reconsidered its earlier decision thatFamily First be de-registered, as directed by the High Court, but concluded again thatFamily First should be de-registered.9 Family First appealed against the secondderegistration decision to the High Court, but its appeal was dismissed.10 ThatHigh Court judgment was reversed by the Court of Appeal in the decision underchallenge in the present appeal.11Statutory context[8] As mentioned earlier, Family First was registered under the Charities Act.Section 13(1) sets out the essential requirements for registration which, in the case ofa trust, is that it must be "of a kind in relation to which an amount of income is derived6 At [2].7 Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169 [Greenpeace (SC)].8 Re Family First New Zealand [2015] NZHC 1493, (2015) 27 NZTC ¶22-017. In that decision,Collins J summarised all of the steps taken by the Charities Commission and, later, theCharities Registration Board, prior to the deregistration of Family First: at [5]–[14].9 Family First New Zealand (CC10094) Charities Registration Board Decision 2017-1, 21 August2017 [Second deregistration decision].10 Re Family First New Zealand [2018] NZHC 2273, [2019] 2 NZLR 673 (Simon France J)[HC judgment].11 The majority of the Court of Appeal set out a summary of the decisions referred to above in theirreasons: CA judgment, above n 1, at [13]–[40]. We do not repeat that here.by the trustees in trust for charitable purposes".12 The term "charitable purpose" is thesubject of an inclusive definition in s 5 of the Charities Act, which relevantly provides:5 Meaning of charitable purpose and effect of ancillary non-charitablepurpose(1) In this Act, unless the context otherwise requires, charitable purposeincludes every charitable purpose, whether it relates to the relief ofpoverty, the advancement of education or religion, or any other matterbeneficial to the community.(3) To avoid doubt, if the purposes of a trust, society, or an institution includea non-charitable purpose (for example, advocacy) that is merely ancillaryto a charitable purpose of the trust, society, or institution, the presence ofthat non-charitable purpose does not prevent the trustees of the trust, thesociety, or the institution from qualifying for registration as a charitableentity.(4) For the purposes of subsection (3), a non-charitable purpose is ancillaryto a charitable purpose of the trust, society, or institution if thenon-charitable purpose is—(a) ancillary, secondary, subordinate, or incidental to a charitablepurpose of the trust, society, or institution; and(b) not an independent purpose of the trust, society, or institution.[9] As this Court noted in Greenpeace (SC), the legislative history makes it clearthat in enacting s 5, Parliament made a deliberate choice to retain the concepts ofcharity that had been developed in case law.13 The Court noted that in referring tocommon law concepts in s 5, Parliament should be taken to expect the common lawto continue to develop to meet fresh facts and changing perceptions of what justicerequires, except where such developments would be inconsistent with the statute.14[10] The Court then described the common law approaches as follows:15Common law approaches to charitable purpose[18] At common law, charitable status is recognised on a case by casebasis, by analogy with previous common law authorities falling generallywithin the "spirit and intendment" of the preamble to the Statute of CharitableUses 1601 (UK) 43 Eliz I c 4. Objects have been accepted to be charitable if12 Charities Act 2005, s 13(1)(a).13 Greenpeace (SC), above n 7, at [16].14 At [17].15 Some footnotes omitted.they advance the public benefit in a way that is analogous to the cases whichhave built on the preamble to the 1601 Act.[19] The Statute of Charitable Uses was legislation to reform abuses ofcharitable trusts which had not been employed "according to the charitableintent of the givers and founders". It was contemporary with the Act for Reliefof the Poor 1601 (UK) 43 Eliz I c 2 and seems to have reflected in part theimportance of private philanthropy in reducing the burden on parishratepayers of poor relief. The preamble to the Statute of Charitable Usesalluded to the various objects for which settlements had been made bymonarchs and by "sundry other well-disposed persons":some for relief of aged, impotent and poor people, some formaintenance of sick and maimed soldiers and mariners; schoolsof learning, free schools, and scholars in universities; some forrepair of bridges, posts, havens, causeways, churches, sea banks,and high ways; some for education and preferment of orphans;some for or towards relief, stock or maintenance for houses ofcorrection; some for marriages of poor maids; some forsupportation, aid and help of young tradesmen, handicrafts men,and persons decayed and others for relief or redemption ofprisoners or captives, and for aid or ease of any poor inhabitantsconcerning payments of fifteens, setting out of soldiers [20] The touchstone of the "spirit and intendment" of the preamble doesnot require close focus on the specific purposes identified in it. The preambleitself set out purposes treated as charitable at the time. It was never regardedas an exclusive catalogue, but rather as "typical of the kind of charity whichthe State wished to encourage". In their original form, the examples given"were unified by their association with the financial obligations of, orcontributions to, a parish government's purse strings."[21] The "spirit and intendment" of the preamble is the "accepted test"only "in a very wide and broad sense". Rather the spirit of the preamble islooked to through the cases decided in the intervening centuries. The case-law"endeavoured to keep the law as to charities moving as new social needsarise or old ones become obsolete or satisfied". In order to be within the "spiritand intendment" of the preamble, "one must find something charitable in thesame sense as the recited purposes are charitable".[22] In 1891 Lord Macnaghten in Commissioners for Special Purposes ofthe Income Tax v Pemsel16 organised the cases into the classification whichwas adopted in earlier tax legislation in New Zealand and which is nowexpressed in s 5(1) of the Charities Act. In this, he drew on the four-foldclassification earlier adopted by Lord Eldon in Morice v Bishop of Durham:17First, relief of the indigent; in various ways: money: provisions:education: medical assistance: etc; secondly, the advancement oflearning; thirdly, the advancement of religion; and fourthly,which is the most difficult, the advancement of objects of generalpublic utility.16 Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL).17 Morice v Bishop of Durham (1805) 10 Ves Jun 522, 32 ER 947 (Ch) at 532.[23] Even though in popular understanding charity may have beenprincipally associated with alleviating poverty, Lord Macnaghten in Pemselconsidered that the technical legal meaning of charitable purposes had cometo entail the four purposes: the relief of poverty; the advancement ofeducation; the advancement of religion; and other purposes also beneficial tothe community but not falling within the first three categories. Like all suchcommon law restatements, and as the fourth category explicitly allows, thePemsel classification itself is not set in stone. The law of charity has beenacknowledged to be "a moving subject".[11] The Court noted that some had suggested that any object of benefit to the publicis automatically a charitable object for the purpose of the fourth head.18 However, itrejected that proposition:19[29] The preponderance of authority since 1805 has required both publicbenefit and charitable object "in the same sense" as the cases developed fromthe preamble to the Statute of Charitable Uses. A single test may have theattraction of simplicity but loses the concept of charity which has always beenessential. Identifying what is of public benefit without restriction to the kindof objects held to be charitable would set up a broad and less controlledassessment which could increase the entities entitled to charitable status. Aswas recognised in Canada by Iacobucci J when delivering the majorityjudgment of the Supreme Court in Vancouver Society of Immigrant and VisibleMinority Women v Minister of National Revenue, adoption of a single test of"public benefit" would "constitute a radical change to the common law and,consequently, to tax law".20[30] The language and structure of s 5(1) make it clear that, although "anyother matter beneficial to the community" may qualify, the object must alsobe a "charitable purpose". The method of analogy to objects already held tobe charitable is also the safer policy since charitable status has significantfiscal consequences. Since the common law methodology is assumed inNew Zealand by the Charities Act, we consider that it would not beappropriate for this Court to abandon the analogical approach in favour of theview that benefit to the public presumptively establishes the purpose ascharitable.[12] We follow that approach in the present case.21[13] When an entity applies for charitable status, the application is first consideredby the Chief Executive of the Department of Internal Affairs | Te Tari Taiwhenua, whomust then make a recommendation to the Charities Registration Board as to whether18 Greenpeace (SC), above n 7, at [24].19 Some footnotes omitted.20 Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue[1999] 1 SCR 10 at [200] [Vancouver Society].21 The relevance of tax law to this approach was challenged: see below at [18](b).it should grant or decline the application for charitable status.22 Section 18(3)(a) ofthe Charities Act provides that, in considering an application, the Chief Executive musthave regard to:(i) the activities of the entity at the time at which the applicationwas made; and(ii) the proposed activities of the entity; and(iii) any other information that it considers is relevant [14] This requirement to consider the activities of the entity has some significancein the present case because, as discussed below, Family First argued that the Courtshould limit itself to consideration of the objects of Family First set out in the TrustDeed.Issues[15] The lower Courts differed on whether Family First qualified for charitablestatus. To summarise, the High Court determined that Family First was not charitableunder the fourth purpose identified in Pemsel (objects of general utility). Nor didFamily First qualify under the second purpose (advancement of education). We callthese the second and fourth heads respectively.23 By majority, the Court of Appealreversed the High Court decision in respect of both heads, making a declaration thatFamily First qualified for registration under the Charities Act.[16] On appeal to this Court, there are three major issues for resolution:(a) While the principal focus of the argument for Family First in the lowerCourts was the fourth head, its case before this Court was firmly basedon the second head. Therefore, the principal issue on appeal is whetherFamily First's objects qualify as being for the advancement ofeducation. A related issue is whether what we will call "viewpointexpression" (dissemination of materials that adhere to a particular22 Charities Act, ss 18 and 19. We understand that. in practice, many decisions are made by CharitiesServices | Ngā Ratonga Kaupapa Atawhai (Charities Services), a unit of the Department of InternalAffairs | Te Tari Taiwhenua.23 Family First did not argue that it had a purpose of the advancement of religion.viewpoint) can legitimately qualify as charitable within the meaning ofthe second head.(b) Regarding the fourth head, the question is whether Family First's objectof promoting and supporting the institutions of family and marriagequalifies as advancing objects that are beneficial to the community.(c) The appellant submits that even if Family First's objects come withineither or both of the second and fourth heads, it has other non-charitableobjects that are not ancillary to any purpose found to be charitable. Onthe appellant's view, this would be disqualifying. The issue is whetherthat contention is correct.[17] Several preliminary issues were also raised by the parties. First, Family Firstargues that, in determining whether its objects meet the requirements of the second orfourth heads, only the objects set out in its constitutional document, the Trust Deed,should be considered. So a preliminary question is whether the inquiry should beconfined in that way, or whether the Court can go beyond the deed to consider evidenceof Family First's activities and publications. Second, the appellant's writtensubmissions included a colour-coded table headed "Assessment of material in case onappeal" that summarised by category and number the material in the case on appealregarding Family First's activities. Family First submitted that we should not take intoaccount the information derived from this table, or its subsequent iterations. Thequestion is whether that submission should be accepted (although, it largely turns onhow this Court resolves the first preliminary issue).[18] Finally, a number of other issues were raised, but were not ultimately thesubject of extensive submissions, so we deal with them only briefly. These are:24(a) whether the observation in Greenpeace (SC) that the decision of theCourt of Appeal in Molloy v Commissioner of Inland Revenue seems24 CLAANZ also raised the possibility that tikanga may be a relevant factor in assessing whether anentity's objects are charitable. But this was not pursued in argument and we think it is better toleave the point for consideration in a case where it may affect the outcome.correct should be reconsidered (raised in Family First's r 20A notice);25(b) whether the fiscal consequences of a finding that an entity hascharitable objects should be ignored by decision-makers (a point raisedby CLAANZ); and(c) whether the withdrawal of charitable status from an entity that engagesin political advocacy interferes with the entity's freedom of expressionunder s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights)(also raised by CLAANZ).[19] We will begin by dealing with the preliminary issues identified above at [17].Considering activities as well as the constitution?[20] As noted earlier, counsel for Family First, Mr Bassett, argued that the purposesof Family First should be determined primarily by reference to its Trust Deed, ratherthan by a process that included reference to its actual activities. Where a trust deed isambiguous or where the stated objects are generally unclear, it may be legitimate tohave recourse to evidence of the trust's activities. But otherwise, the ascertainment ofa trust's purposes is a matter of construction. He relied on the decision of Ellis J inRe The Foundation for Anti-Aging Research in support of that proposition.26CLAANZ as intervener supported Mr Bassett's argument.High Court and Court of Appeal[21] The High Court Judge considered both the objects set out in the Trust Deedand Family First's activities in determining what its purposes were.27 Family Firstargued in the Court of Appeal that this was an error of law.28 That submission was25 Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA), as discussed in Greenpeace(SC), above n 7, at [73]. The r 20A notice called for a reconsideration of Greenpeace (SC) itself,but that was not pursued.26 Re The Foundation for Anti-Aging Research [2016] NZHC 2328, (2016) 23 PRNZ 726 at[84]–[89], referring to Institution of Professional Engineers New Zealand Inc v Commissioner ofInland Revenue [1992] 1 NZLR 570 (HC) at 572 per Tipping J. Counsel also referred in his writtensubmissions to Latimer v Commissioner of Inland Revenue [2004] UKPC 13, [2004] 3 NZLR 157at [29] per Lord Millett.27 HC judgment, above n 10, at [19]–[32].28 CA judgment, above n 1, at [42].largely accepted by the Court of Appeal.29 The Court of Appeal majority30 cited thefollowing extract from Greenpeace (SC):31The purposes of an entity may be expressed in its statement of objects or maybe inferred from the activities it undertakes,32 as s 18(3) of the Charities Actnow makes clear.[22] Relying on s 18(3) and Greenpeace (SC), the majority of the Court of Appealreversed the approach taken by the High Court and affirmed what it termed the"orthodox view" that, as a rule, if stated purposes are clearly charitable, that is the endof the matter and an activities test is "not in order".33Our assessment[23] We can deal with this point in short order. Section 18(3) makes it clear that theChief Executive must have regard to the activities and proposed activities of the entityseeking charitable status when considering an application from an entity forregistration as a charity. That requirement is not restricted to situations where theobjects in the constitutional document of the entity are ambiguous or there is a concernthey do not represent the true purposes of the entity. The Court of Appeal majority'sfinding to the contrary was in error.34[24] In the present case, s 18(3) is not directly engaged because the context for thecase is deregistration, rather than registration. But it still applies indirectly. Section32(1)(a) provides that the Board may direct that an entity be removed from the registerif it is no longer qualified for registration as a charitable entity.35 This necessarily29 At [88]–[89], citing Hubert Picarda The Law and Practice Relating to Charities (4th ed,Bloomsbury Professional, Haywards Heath, 2010) at 27.30 CA judgment, above n 1, at [89].31 Greenpeace (SC), above n 7, at [14].32 Molloy, above n 25, at 693 per Somers J.33 CA judgment, above n 1, at [86]–[88]. The "orthodox view" referred to is argued to be the positionat common law. We do not need to discuss just what that position was, as the issues in thisproceeding are to be determined by reference to the statutory scheme.34 The Court of Appeal cited the judgment of Ellis J in Anti-Aging in support of its conclusion. Ellis Jsaid the pre-2005 law was that the activities of an entity were relevant only where its constitutionaldocuments were unclear or there was evidence the entity's activities were inconsistent with itspurposes. She considered it was unlikely that s 18(3) was intended to change that position:Anti-Aging, above n 26, at [85]–[86]. We consider that, if that was the pre-2005 law, s 18(3) didchange it.35 As the High Court Judge pointed out, the reference to an entity "no longer" qualifying forregistration means the focus will be on its activities since registration, because its purposes areunlikely to have changed: HC judgment, above n 10, at [59]. That indicates the inquiry relatingrequires the Board to consider whether the entity meets the essential requirements ins 13, which is the same inquiry that must be made when an entity applies forregistration.[25] Moreover, under s 50 of the Charities Act, the Chief Executive is empoweredto examine and inquire into any charitable entity. The Chief Executive exercised thatpower in relation to Family First as part of the process that led to the secondderegistration decision. Section 50(2) provides in relation to such an inquiry:(2) The power to examine and inquire into any charitable entity or personunder subsection (1) includes the power to examine and inquire into thefollowing matters in connection with the charitable entity or person:(a) the activities and proposed activities of the charitable entity orperson:(b) the nature, objects, and purposes of the charitable entity:(c) the management and administration of the charitable entity:(d) the results and outcomes achieved by the charitable entity orperson:(e) the value, condition, management, and application of theproperty and income belonging to the charitable entity or person.[26] We think it is clear that any decision-maker in relation to an application forcharitable status must have regard to both the objects in the entity's constitutionaldocument and also its activities and proposed activities. That being the case, adecision-maker in relation to the proposed deregistration of a charitable entity mustalso consider the activities and proposed activities of the entity in question. AsSimon France J noted, it would be strange if an inquiry to determine whether an entityshould retain charitable status was not able to take into account what the entity actuallydid in order to ascertain whether it continues to pursue one or more charitablepurposes.36[27] In short, we consider the approach adopted by the High Court in this case wascorrect and that the Court of Appeal majority erred.to both registration and de-registration must include consideration of the activities of the entity.36 HC judgment, above n 10, at [59].[28] CLAANZ advanced a further argument, highlighting the following statementfrom the majority judgment in Greenpeace (SC):37Where an entity seeking charitable status has objects or conducts activitiesthat involve promoting its own views or advocacy for a cause, it may beespecially difficult to conclude where the public benefit lies and whether theobject or activities come within the spirit and intendment of the preamble tothe Statute of Charitable uses.[29] CLAANZ argued that this suggested that the Court is required to considerwhether activities themselves are charitable. It said whether activities are charitableor not is irrelevant in charity law. It argued that we should depart from this aspect ofthe decision in Greenpeace (SC).[30] We do not see any reason to revisit this statement. There was no suggestion inGreenpeace (SC) that the Court was applying anything other than the s 13 test, whichfocuses on charitable purposes as defined in s 5 of the Charities Act. Rather, the Courtwas indicating that promotion of the entity's own views or advocacy for a cause willpose the problem of identifying where the public benefit lies.[31] In summary, we consider the approach adopted by the High Court in this casewas correct and that the Court of Appeal majority erred by reaching its conclusion thatFamily First was a charity under the second head, education, before it gave anyconsideration to Family First's activities.38Appellant's table of Family First's activities[32] As mentioned earlier, counsel for the appellant's written submissions includeda colour-coded table headed "Assessment of material in case on appeal", whichsummarised by category and number the material in the case on appeal aboutFamily First's activities.39 Counsel said this table summarised "[t]he various causesFamily First advocates for or against, and the nature and extent of this advocacy".Mr Bassett pointed out a number of issues with this table in his written submissions,37 Greenpeace (SC), above n 7, at [32].38 CA judgment, above n 1, at [97].39 The categories were "Submissions on Bills, policy work etc", "Articles, posts, media releases","Research reports" and "Opinion pieces in newspapers". The material in the case on appealincluded evidence that was before the Charities Registration Board and additional evidenceadduced in the High Court and the Court of Appeal.supported by an affidavit from Mr McCoskrie which set out a detailed response to thetable. We provisionally admitted this affidavit at the hearing and said we would ruleon its admissibility later. The appellant objected to its admission on the basis that itaddressed a matter that should have been the subject of submission rather thanevidence. While there may be some truth in that, the material in the affidavit was partof the process leading to the refinement of the table and should be part of the recordof the appeal. We therefore admit it.[33] In response to the issues raised by Mr Bassett and Mr McCoskrie, the appellantfiled a second, corrected version of the table just before the hearing. Mr Bassett wasgiven leave to file further submissions on the second version after the hearing, whichled to a third version being filed. The third version was a substantial modification ofthe original table, now without duplications and triplications of items and items thatwere not generated by Family First, but sourced from other entities (mainlymainstream and third-party media organisations).40 Although the appellant removedfrom the table the items sourced from other entities, counsel for the appellant did notconcede these were irrelevant in considering the nature and scope of Family First'sactivities.[34] Much of the controversy about the table was resolved by this process, butMr Bassett maintained his objection to it. First, he argued much of the evidencerepresented in the table was not generated by Family First and was not necessarily arepresentative sample of its activities. Much of the material was selected by CharitiesServices from a "web trawl" of Family First's website and was forwarded to theCharities Registration Board to assist in making the second deregistration decision. Ittherefore became part of the case on appeal in the High Court. Secondly, he said thetable was produced for the first time in this Court, meaning the evidence was beingused by the appellant to support its position as to the nature and scope of Family First'sactivities in a way that had not occurred in the Courts below. Thirdly, the table givesequal weighting to any item on the website, so a comprehensive research report istreated as equal to a short media op-ed piece. He said the result was a skewed picture40 The categories in the third version of the table are "Submissions on Bills, policy work etc producedby Family First", "Research reports produced or commissioned by Family First" and "Articles,media releases, videos and opinion pieces in newspapers ('op-eds') produced by Family First".of Family First's activities. Fourthly, it includes items dating from well before thesecond deregistration decision of the Board and also after it.[35] The table was not evidence, but rather a graphic representation of the evidence.That is, it is the method chosen by counsel to frame their submission about theevidence. We do not see any reason to interfere with the way counsel choose to presenttheir case, subject of course to ensuring that the table does correctly represent theevidence it describes. While Mr Bassett's concerns about the shortcomings of theearlier versions of the table were justified, we see them as largely resolved by the thirdversion. We agree with Mr Bassett that the equal weighting of items can lead to askewed picture. Mr Gunn accepted this. But the use of colour-coded categoriesameliorates this to some extent.[36] We do not think Mr Bassett's complaint about who selected the items that werehighlighted for the Charities Registration Board is valid. It was Family First thatreferred Charities Services to its website during the investigation. It made submissionsto the Charities Registration Board and also adduced further evidence in both theHigh Court and Court of Appeal. It therefore could have corrected any misleadingimpression if necessary. It did not seek to adduce evidence in this Court to do so. Nordid it suggest at any stage that the evidence described in the table was inadmissible.[37] We do not consider there is any need for the Court to confine its considerationto items that are dated before, but not well before, the Board's decision. The case onappeal includes evidence filed with leave in the High Court and the Court of Appeal,as well as the evidence considered by the Board. All of it is before this Court andcounsel for the appellant is entitled to rely on it.[38] Having said all that, we also acknowledge Mr Bassett's submission that thetable should not be taken as representing Family First's activities with precision.There is a limit to the value of a quantitative analysis without also undertaking aqualitative analysis. But it does assist in getting an overall impression of the issues onwhich Family First focuses its attention, which can be considered alongside the morespecific consideration of the individual research reports and other items.Second head: Advancement of education[39] As mentioned earlier, the case for Family First was advanced in this Court onthe primary basis that it qualified as a charity under the second head, the advancementof education. Family First argued that this could be taken from the purposes in itsTrust Deed. In the event that this Court determined the activities of Family First werealso to be considered, Family First argued that its publication of 17 reports ofeducational value, its conduct of annual family forums and its provision of a virtualreading room on its website together substantiated its claim that its purpose was theadvancement of education.[40] Mr Gunn accepted that the 17 reports relied on by Family First as illustratinga purpose of advancing education meet the minimum standard set out in case law forwhat qualifies as being of educative value. But he argued they were, in truth, advocacyof a particular viewpoint or propaganda, which did not meet the requirements for acharity with the purpose of the advancement of education.High Court[41] Although a secondary ground of appeal in the High Court, Family Firstchallenged the decision of the Charities Registration Board that it did not qualify forregistration under the second head. The Board had found that the materialdisseminated by Family First was advocating a particular point of view, which was notan educational purpose.41[42] The High Court Judge said he understood it was conceded by Family First thatits purpose was to promulgate a singular view of family (the traditional family). Andif the point was not conceded, the Judge concluded that it was plainly the case thatFamily First's purpose was to promote the traditional family unit.42[43] The Judge said it was not necessary to address the education/advocacy issue indetail. This was because it was clear that Family First advocated for law change in avariety of areas, some of which were for the public benefit and some of which were41 HC judgment, above n 10, at [40].42 At [60].not. He saw those purposes as independent purposes rather than as purposes ancillaryto an educational purpose. In fact, he thought the opposite was the case: educationwas undertaken to persuade people to Family First's point of view and garner supportfor its efforts to effect the changes for which it advocated.43[44] The Judge considered that, apart from one report (prepared by the New ZealandInstitute of Economic Research (NZIER), to which we will refer later) the publicationsof Family First, which were the best evidence that the trust was for the advancementof education, were all written from the same viewpoint, and promoted a cause favouredby Family First. This did not qualify for the advancement of education in a charitablesense.44Court of Appeal[45] The majority of the Court of Appeal, Clifford and Stevens JJ, approached theiranalysis on the basis that the purposes of Family First should be determined primarilyfrom the Trust Deed, adopting the approach of Ellis J in the Anti-Aging case.45 Theysaw a common thread of the advancement of education and research running throughthe objects in the Trust Deed.46 The majority said the objects had a central theme,namely giving support to "marriage and family". They also noted that one objectspecifically refers to educating the public on the institutional, legal and moralframework of a just and democratic society.47 Thus, they considered the objects ontheir face promoted the advancement of education by facilitating research on, andpublic understanding of, the roles of marriage and the family in society.48 The majorityJudges were satisfied that the answer to the fundamental question, namely whether thecharitable purposes of promoting and disseminating research about the family are "fora public good", was yes.49[46] The majority then analysed the reports commissioned by Family First and themanner in which Family First commissioned, distributed and promoted those reports.43 At [70].44 At [71].45 CA judgment, above n 1, at [86].46 At [90]. The objects are set out below at [69].47 At [91].48 At [92].49 At [97].They concluded that Family First's clear purpose in relation to those reports wasstimulating public debate and participating in public discourse on important socialissues relevant to families.50 They considered the research materials commissionedby Family First illustrated that its activities were broadly consistent with the objectsin the Trust Deed.51[47] The majority said the High Court Judge gave too much weight to the activitiesof Family First and too little to its objects in concluding that Family First's activitieswere aimed at promoting causes.52[48] The majority concluded as follows:[122] The evidence we have reviewed establishes Family First recognisedthe importance of its objects and purposes to commission research on, andeducate the public about, the importance of marriage and family life (includingcore family values) in New Zealand society. Such research is valuable inpromoting public knowledge about marriage and families and the many issuesthat affect the family. Public discussion and debate about such importantissues is desirable to encourage the development of related policies and laws.The NZIER report is but one of many examples showing how Family Firstwent about fulfilling its education and research objects.[49] Gilbert J, in dissent, said the High Court Judge was correct to deal with thesecond head (advancement of education) only briefly because the principal argumentfor Family First was that it qualified under the fourth head.53 He noted Family First'sresponse to an inquiry from Charities Services was that it spent 75 per cent of its timeon advocacy for specific causes and 25 per cent on administration, fundraising andsupporter/database management. The response did not mention education.54 He alsonoted that in its 14 years of existence, Family First had published only 21 reports.55Legal test to be applied[50] Family First's essential case is that the objects set out in the Trust Deed includethe promotion and advancement of research, educating the public and publishing50 At [109].51 At [113].52 At [121].53 At [194]. He added that the critical issue in the case was whether Family First's advocacy purposequalified under the fourth head, in light of the decision in Greenpeace (SC), above n 7, at [196].54 At [195].55 At [195]. We were told the correct number is 17.material affecting families, all of which it says exhibit a purpose that falls within theadvancement of education. This is assumed to be of public benefit unless the contraryis shown.56 To evaluate this we will consider not only the objects set out in theTrust Deed but also the publications and activities of Family First.[51] In Re Collier, Hammond J summarised the law in respect of the second headof charity as follows:57It seems to me that for a publication bequest of this kind to be upheld, it mustfirst confer a public benefit, in that it somehow assists in the training of themind, or the advancement of research. Second, propaganda or cause underthe guise of education will not suffice. Third, the work must reach someminimal standard.[52] This echoes the formulation outlined by Iacobucci J in the majority judgmentof the Supreme Court of Canada in Vancouver Society:58 the purpose of offering certain benefits to charitable organizations is topromote activities which are seen as being of special benefit to the community,or advancing a common good. In the case of education, the good advanced isknowledge or training. Thus, so long as information or training is provided ina structured manner and for a genuinely educational purpose – that is, toadvance the knowledge or abilities of the recipients – and not solely topromote a particular point of view or political orientation, it may properly beviewed as falling within the advancement of education.[53] The formulation set out in Vancouver Society was endorsed in New Zealand byRonald Young J in Re Draco Foundation (NZ) Charitable Trusts.59[54] The Court of Appeal considered the Vancouver Society formulation was narrowand contrasted it to the comments of Wilberforce J in Re Hopkins' Will Trusts:60 the word "education" must be used in a wide sense, certainly extendingbeyond teaching, and that the requirement is that, in order to be charitable,research must either be of educational value to the researcher or must be sodirected as to lead to something which will pass into the store of educational56 Greenpeace (SC), above n 7, at [27]; and National Anti-Vivisection Society v Inland RevenueCommissioners [1948] AC 31 (HL) at 65 per Lord Simonds [Anti-Vivisection].57 Re Collier (deceased) [1998] 1 NZLR 81 (HC) at 91–92.58 Vancouver Society, above n 20, at [169].59 Re Draco Foundation (NZ) Charitable Trusts (2011) 25 NZTC ¶20-032 (HC) at [75] [Draco],referring to Vancouver Society, above n 20, at [171] (which is in similar terms to [169], quotedabove).60 Re Hopkins' Will Trusts [1965] Ch 669 (Ch) at 680.material, or so as to improve the sum of communicable knowledge in an areawhich education may cover [55] We agree that education should not be interpreted narrowly, although we donot share the Court of Appeal's belief that the Vancouver Society test is necessarilynarrower compared to the English position. In part, that is because Iacobucci J'sjudgment actually sought to widen the meaning of 'education' by reference to the"more expansive approach taken by the English courts".61 Leaving that issue to oneside, we consider that a helpful definition, endorsed by the majority in theCourt of Appeal, is contained in Law of Charity as follows, and we are also content toadopt it:62Overall, the advancement of education may be taken to mean the"advancement of education for its own sake in order that the mind may betrained" or that it assists in the training of the mind or advances research,which can include obtaining a commercial education. It is also evident that"this branch of law is not confined to teaching in the conventional sense. Itextends to all branches of human knowledge and its dissemination". Thisreflects the notion that "education", and its advancement is a broad concept.[56] For the purposes of this appeal, however, the major question is whetherFamily First qualifies as advancing education in a charitable sense when its researchreports, together with other supposedly educative material, put forward a singularviewpoint on the subject-matter. Charities law has long recognised a distinctionbetween valid educational objects and merely political or propaganda-based objects.CLAANZ referred us to an article by Professor L A Sheridan, which illustrated the linebetween education and propaganda in these terms:6361 In Vancouver Society, Iacobucci J began the discussion of education by highlighting how"'advancement of education' has been given a fairly restricted meaning" in Canada, traditionallybeing limited to "formal training of the mind" or the "improvement of a useful branch of humanknowledge": at [161]. However, he later commented that such limitations are "unduly restrictive"when compared to the English position, and that there is "much to be gained by adopting a moreinclusive approach to education for the purposes of the law of charity": at [168]. For that reason,he considered the law under the second head "should be modified" and that it was "worthconsidering the slightly more expansive approach taken by the English courts": at [166]. To thatend, he referred approvingly to the decisions in Re Hopkins' Will Trusts, above n 60 andInland Revenue Commissioners v McMullen [1981] AC 1 (HL) at 15, both of which take a broadview of charitable education. The approach in Vancouver Society is therefore reconcilable withthe approach followed by the English authorities.62 Juliet Chevalier-Watts Law of Charity (2nd ed, Thomson Reuters, Wellington, 2020) at 141(footnotes omitted), endorsed by the majority of the Court of Appeal: CA judgment, above n 1, at[82].63 L A Sheridan "The Political Muddle – A Charitable View?" (1977) 19 Mal L R 42 at 70, cited withapproval in Attorney-General for NSW v The NSW Henry George Foundation Ltd [2002] NSWSC1128 at [52].There is a thin line, difficult to discern and possibly without great legalsignificance, but there all the same, between trying to convert people to a pointof view and informing them of its existence and of the reasons for it – betweenpropaganda and education.[57] Later, Professor Sheridan added:64Nevertheless there is a valid distinction between a trust whose funds are to bespent converting people to a specified political objective and one whose fundsare to be used to make knowledge of the arguments for a specified politicalobjective more readily available.[58] Before elaborating on that distinction, it is first necessary to determine whateffect (if any) this Court's judgment in Greenpeace (SC) may have on what qualifiesas "education" within the meaning of the second head. As we will come to later whendiscussing the fourth head, in Greenpeace (SC), this Court decided that the politicalpurpose exception (which meant advocacy for political purposes was, of itself, adisqualifying factor for an applicant for charitable status) should no longer apply inNew Zealand.65 Although that case concerned the fourth head rather than theadvancement of education, it raises the question as to whether the hard-and-fastdistinction between education and propaganda or political advocacy should still applyin relation to the second head. To the extent that the distinction was solely based onthe political purposes exclusion, there may have been grounds for reconsideration.However, we consider the better view is that the distinction is not solely founded onthe former exclusionary rule. Rather, the distinction exists because propaganda doesnot provide the public benefit that comes from education (to which we revert below).66Consequently, the distinction between education and propaganda remains relevantfollowing Greenpeace (SC) and is not substantially affected by it.[59] Having resolved that preliminary issue, we turn to discuss the test governingthe line between education and propaganda. For the most part, the case law illustratesa significant degree of confusion about how best to delineate between those objects.64 At 72.65 See below at [125]–[130].66 Support for this proposition can be found in Tudor on Charities, which explains that propagandistmaterial might not be charitable under the second head for either or both of the following reasons:(a) because it is not educational; or (b) because it runs afoul of the 'political purposes' exclusionaryrule: William Henderson, Jonathan Fowles and Julian Smith Tudor on Charities (10th ed, Sweet& Maxwell, London, 2015) at [2-036], n 146 [Tudor on Charities].The line has become blurred. In Public Trustee v Attorney-General of New SouthWales, Santow J observed:67The cases on charities also involve some confusion between means and endswhen it comes to their persuasive activities. There is a range of activity fromdirect lobbying of the government, to education of the public on particularissues, in the interests of contributing to a climate conducive to politicalchange. The line between an object directed at legitimate educative activitycompared to illegitimate political agitation is a blurred one, involving at themargin matters of tone and style.[60] This echoes Professor Sheridan's comment about the thin line betweeneducation and propaganda. It also brings to mind this Court's observation inGreenpeace (SC) (in relation to the fourth head) that determining whether advocacyqualifies as charitable will depend on a consideration of the end that is advocated, themeans promoted to achieve that end and the manner in which the cause is promoted.68[61] Part of the disagreement between the lower Courts turned on whether puttingforward a singular viewpoint is compatible with education. To summarise, on the HighCourt's view, a second-head charity will ordinarily be disqualified where its educativematerials are all written from one viewpoint. Expressing a view (or promoting a cause)will typically constitute advocacy, bringing the charity beyond the contours of thesecond head. The Court of Appeal's reasoning allows more room for expressing aview, so long as the objects stated in the trust's constitutional document are sufficientlyeducation-focused.[62] We think it is too simplistic to say that expounding a particular viewpoint on atopic will, of itself, rule out an educational purpose. As the majority inGreenpeace (SC) remarked in relation to the fourth head of charity, a blanket exclusionbased on whether a trust's objects are characterised as political or advocacy obscuresfocus on the true question — that is, whether the entity's purposes qualify as charitablein the sense generally understood by law.69 For second head charities, therefore, therelevant inquiry is whether the entity's purpose is capable of securing the publicbenefits said to accrue from education even though the entity expresses a view on the67 Public Trustee v Attorney-General of New South Wales (1997) 42 NSWLR 600 (SC) at 621.68 Greenpeace (SC), above n 7, at [76], set out below at [130].69 At [69].subject-matter. As Professor Sheridan said in the article referred to earlier,"[e]xpounding important points of view, religious and otherwise, is part of theadvancement of education".70 Similarly, Professor Dal Pont noted that a trustpropagating reports containing a viewpoint may still be capable of educating theintended audience by increasing learning, understanding, skills or capabilities wherethe material allows recipients to "make up their own minds" on the subject-matter.71[63] In Vancouver Society, the Supreme Court of Canada (as mentioned above) heldthat so long as information or training is provided for a "genuinely educationalpurpose" and not "solely to promote a particular point of view", the entity may qualifyas charitable under the second head.72 Later in its decision, the Court clarified thatviewpoint expression will disqualify an entity where its true object is "persuasion orindoctrination".73 In addition, where the entity's purpose is educational there must bea "coherent relationship" between the means and the end, that is the activitiesundertaken to further the purpose and the purpose itself, "such that the activity can besaid to be furthering the purpose".74 Similarly, the Federal Court of Appeal in Canadahas ruled that educating from a "particular political or moral perspective" can qualifyas charitable where the teaching does not cross into true advocacy.75 The authors ofTudor on Charities summarise the means required in these terms:7670 Sheridan, above n 63, at 70.71 G E Dal Pont Law of Charity (2nd ed, LexisNexis, Chatswood (NSW), 2017) at 187 and 198–199.72 Vancouver Society, above n 20, at [169] (emphasis added).73 At [171], noting that educating people about a particular viewpoint in a "manner that might moreaptly be described as persuasion or indoctrination" will not qualify as charitable education.74 Vancouver Society, above n 20, at [52] and [62] per L'Heureux-Dubé, Gonthier and McLachlin JJ.The majority (comprising Cory, Iacobucci, Major and Bastarache JJ) reached a different answeron the merits of the case, but followed a similar approach in assessing how direct the connectionbetween the entity's activities and purposes are, and whether those activities legitimately furtherthe entity's charitable purposes or not. Both the minority and majority agreed that activities mustbe assessed by reference to the purposes they are said to further and whether the relevant activitiesin-fact have the effect of furthering those purposes (see, for example, at [53]–[62], [152] and[199]).75 The Challenge Team v Revenue Canada (2000) DTC 6242 (FCA) at [1], referring to the commentsin Vancouver Society, above n 20, at [169] that an activity is not educational in the charitable sensewhen it is undertaken solely to promote a particular point of view, rather than as part of a genuinelyeducational purpose which otherwise meets the requirements of the second head.76 Tudor on Charities, above n 66, at [2-036] (footnotes omitted), referring to Re Bushnell (deceased)[1975] 1 WLR 1596 (Ch) at 729 per Goulding J. For other expressions of the test, see for exampleAlliance for Life v Minister (National Revenue) [1999] 3 FC 504 (FCA) at [57] per Stone JA(students should "be in a position to weigh the viewpoints so advanced against opposingviewpoints in making up their minds one way or the other"); The Challenge Team, above n 75, at[1] (listeners must be able to make an "informed and critical choice"); Greenpeace of New ZealandInc v Charities Registration Board [2020] NZHC 1999, (2020) 29 NZTC ¶24-071 [Greenpeace2020] at [116(a)] ("objective, neutral and balanced"); Vancouver Society, above n 20, at [164]The public must be presented with neutral information so that they can choosefor themselves and not be presented with slanted and selective information insupport of a pre-conceived point of view.[64] Professor Dal Pont also focuses on the requirement of objectivity. Reaching aviewpoint on the subject-matter can still legitimately further a charitable educationalpurpose where the relevant information is:77 researched and presented in a balanced way that encourages awareness ofdifferent points of view, where appropriate, that it consider the arguments inan appropriate way related to the evidence, and if it reaches conclusions, thatthose conclusions be based on evidence and analysis.[65] Propagating general views on the subject-matter to help provoke study has alsobeen found to be charitable in Australia.78 In her dissenting judgment in the Aid/Watchcase, Kiefel J commented that asserting one's views may be "capable of beingcharacterised as for the advancement of education" where the trust's ultimate object isto advance education, not to persuade.79 The distinction between education andpropaganda was also discussed by Heydon J in his dissenting judgment in Aid/Watch.He described the function of the entity in that case as "not educative, but polemical"given that its main objective was to persuade people into a particular frame of mind.80[66] In summary, we consider that expounding a viewpoint will not necessarilydisqualify an entity from charitable status. Viewpoint expression is not fundamentallyincompatible with legitimate education — entities that expound a viewpoint maynevertheless have the purpose of bringing about the benefits generated by education,to which the presumption of charitability attaches. For example, they can "advancethe knowledge or abilities of the recipients" per Vancouver Society,81 or achieve the(material exhibiting a "strong" bias will "in most cases disqualify" an entity under the secondhead); and Re Estate of Murphy [2005] NSWSC 104 at [37] ("neutral information so that they canchoose for themselves").77 Dal Pont, above n 71, at [9.27] (emphasis added and footnote omitted).78 See Royal North Shore Hospital of Sydney v Attorney-General for New South Wales (1938) 60CLR 396 at 427, as discussed in Dal Pont, above n 71, at [9.27], n 183.79 Aid/Watch Inc v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 42,(2010) 241 CLR 539 [Aid/Watch] at [69]. See also at [84] where Kiefel J commented that the"views of the appellant are published on its website, but this is part of its campaign to persuadeothers of its views, not to educate them".80 At [62]. The majority found that Aid/Watch qualified as a charity under the fourth head and didnot therefore consider whether it had a purpose of the advancement of education: at [47]. See alsothe cases mentioned below at n 83 for further examples.81 Vancouver Society, above n 20, at [169].public benefit of what Professor Dal Pont refers to as the "value to society of havingan educated population".82 However, where an entity which espouses a particularviewpoint claims an educative charitable purpose, the following principles will assistin assessing that claim:(a) The entity's purpose must genuinely be to educate rather than advocatefor a cause. Where an entity's direct purpose is to advocate not educate,its ends will not qualify as charitable under the second head. The casesrecognise that persuasion is a feature common to both education-basedand advocacy-based purposes. However, the question for the court willalways be whether the relevant purpose crosses the line between mereeducation about the existence of a viewpoint and the case for it (withthe hope that people may reach their own view on the merits to agreewith the disseminator) and propaganda actively seeking to persuade,indoctrinate or "convert" the recipient to the disseminator's view.Propagating a single viewpoint will be a strong indicator that the entityseeks to advocate not educate, but it is not an automatic disqualifier.83(b) The means adopted will typically be the most helpful guide to assessingwhether the relevant purpose is to educate or advocate. They must beara coherent relationship to the purpose of providing charitableeducation. Where the means by which education is said to be advanceddo not involve balance or general objectivity but are insteadcharacterised by bias towards a particular outcome, that may indicatethat the line between education and advocacy has been crossed. If ithas, the entity will not qualify for registration as a charity under thesecond head, either because the means do not legitimately support any82 Dal Pont, above n 71, at [9.18], citing R (Independent Schools Council) v Charity Commission forEngland and Wales [2011] UKUT 421 (TCC), [2012] Ch 214 at [111].83 Other cases which have found purposes to be on the wrong side of the education/advocacy lineinclude: Buxton v Public Trustee (1962) 41 TC 235 (Ch) at 242–243 ("the creation of a climate ofopinion"); Webb v O'Doherty [1991] TLR 68 (Ch) at 68 ("[c]ampaigning, in the sense of seekingto influence public opinion"); Aid/Watch, above n 79, at [62], referring to Re Collier, above n 57,at 93 (attempts to "influence public opinion" and "persuade people into a particular frame of mind"are not education); and Vancouver Society, above n 20, at [171] ("persuasion" or "indoctrination").In Greenpeace 2020, above n 76, Mallon J observed at [113] that "advocacy aimed at persuadingthe public to adopt a particular attitude on some broad social question and 'advancing education' are not the same".educative purpose, or because they illustrate the entity's true purpose isadvocacy.[67] Where a purpose runs afoul of the above principles, it does not automaticallyfollow that the entity cannot qualify for registration as a charity — rather, it means itsqualification or otherwise will be determined under the fourth head, as recentlymodified by this Court's decision in Greenpeace (SC).[68] We now turn to the application of the law to the present case.Trust Deed and statement of principles[69] We begin our analysis by considering the objects of Family First that are setout in the Trust Deed. They are:A To promote and advance research and policy supporting marriage andfamily as foundational to a strong and enduring societyB To educate the public in their understanding of the institutional, legaland moral framework that makes a just and democratic societypossibleC To participate in social analysis and debate surrounding issues relatingto and affecting the family being promoted by academics, policymakers, social service organisations and media, and to network withother like-minded groups and academicsD To produce and publish relevant and stimulating material innewspapers, magazines, and other media relating to issues affectingfamiliesE To be a voice for the family in the media speaking up about issuesrelating to families that are in the public domainF To carry out such other charitable purposes within New Zealand asthe Trust shall determine[70] Trustees are required to sign a Statement of Faith in the form set out in theTrust Deed as a condition of their appointment as a trustee.[71] Family First encapsulates its views on the significance of family and marriagein two statements of principles which appear on its website.84 Mr Bassett argued theseshould not be considered because they are not constitutional, but we consider they arerelevant to understanding what the objects of Family First are in fact. The statementsof principle are:PRINCIPLES ON FAMILY1. We affirm the intergenerational family as fundamental to society.2. We affirm the natural family to be the union of a man and a womanthrough marriage for the purposes of sharing love and joy, raisingchildren, providing their moral education, building a vital homeeconomy, offering security in times of trouble, and bindingthe generations.3. The natural family cannot change into some new shape; nor can it bere-defined by social engineering.4. We affirm that the natural family is the foundational family system,but we acknowledge varied living situations caused by circumstanceor dysfunction.5. We acknowledge the tremendous contribution made by single,adoptive and step-parents and extended whanau in society. We wishto ensure they receive appropriate levels of assistance, withoutdenying the clear empirical evidence that the best environment inwhich to raise children is the biological two-parent, husband-wifefamily.6. We affirm the marital union to be the authentic sexual bond, the onlyone open to the natural and responsible creation of new life.7. We affirm the sanctity of human life from conception to death; eachnewly conceived person holds rights to live, to grow, to be born, andto share a home with his or her natural parents bound by marriage.8. We affirm that the natural family is prior to the state and that the taskof government is to shelter and encourage the natural family.9. We affirm that the world is abundant in resources. The breakdown ofthe natural family and the consequential moral and political failure,not human "overpopulation," account for poverty, starvation, andenvironmental decay.10. We affirm that the complementarity of the sexes is a source ofstrength. Men and women exhibit profound biological and84 Those statements of principle are said to be adaptions, respectively, of material from:(a) World Congress of Families "The Natural Family: A Manifesto"; and(b) Witherspoon Institute "Ten Principles on Marriage and the Public Good".psychological differences. When united in marriage, the wholebecomes greater than the sum of the parts.PRINCIPLES ON MARRIAGE1. Marriage is a union of husband and wife, intended to be permanent.2. Marriage protects and promotes the wellbeing of children.3. When marriage weakens, children suffer from the disadvantages(economic, emotional, educational, social, spiritual) of growing up inhomes without committed mothers and fathers.4. Marriage elevates and protects our sexual nature.5. Marriage sustains civil society and promotes the common good.6. Marriage is a wealth-creating institution[.]7. The laws that govern marriage should reflect the principles above[.][72] As can be seen, the underpinning of these principles is that marriage consistsof a permanent union of man and woman, which when functioning correctly deliversnumerous benefits to society. A further core proposition is that the traditional marriageis the best model for delivering such benefits.[73] Looking at the objects set out in the Trust Deed, the only explicit reference toeducation is in object B. However, object A refers to promoting and advancingresearch and policy supporting marriage and family and object D refers to producingand publishing relevant material, all of which have potential application to theeducation ground of charity. All of these provisions are focused on the role of thefamily and the institution of marriage, which is referred to in neutral terms in theTrust Deed itself. However, the principles of family published by Family First makeit clear that it is the "natural family", being "the union of a man and a woman throughmarriage", that is the family referred to in the Trust Deed.[74] This is confirmed by the "Family Policy Priorities" set out on the Family Firstwebsite.85 These are said to be the policies Family First will promote for all political85 Family First New Zealand "Family Policy Priorities" <www.familyfirst.org.nz>. These policypriorities were set following a survey of Family First supporters in 2011. We were told that, in2015, the agency responsible for administering the Charities Act, Charities Services, askedMr McCoskrie to describe how Family First reaches decisions on which causes it advocates. Heresponded that Family First's strategy was a continuation of what it had been doing for the past10 years as per its Trust Deed and based on surveys and feedback from supporters.parties to adopt. The policies are listed under these headings:(a) Promoting marriage and families;(b) Promoting life; and(c) Promoting community values and standards.[75] The focus of the first of these on the traditional marriage is confirmed by someof the specific measures said to be policies advocated by Family First, such as:(a) amending the tax and welfare systems to eliminate disincentives tomarriage together with marriage penalties;(b) protecting marriage in law as one man – one woman; and(c) abandoning the concept of no-fault divorce and placing the weight ofthe law on the side of spouses seeking to defend their marriage.[76] Family First's position is that the natural family as described above is the"foundational family system" and that it cannot change into a new shape or beredefined by social engineering.86 Thus, its position is that families other than thenatural family are inferior and that marriage should be limited to a man/woman union.[77] The second broad policy heading is promoting life. Under this heading,Family First advocates for a law change to prevent abortion, amongst other things, andopposes any law change to allow for euthanasia.87[78] The third major priority is promoting community standards and values. Underthis priority, amendments to the Prostitution Reform Act 2003 are advocated for, as isthe reduction in access to pornography both generally but also specifically in respect86 Principles on Family, above at [71]. The principles do, however, acknowledge other forms offamily.87 Presumably this will now be a policy of seeking repeal of the End of Life Choice Act 2019.of children, and a more family-focused (rather than individual rights-based) approachto censorship.[79] For Family First, Mr Bassett supported the position of the majority of theCourt of Appeal, that objects A–D of the Trust Deed promote the advancement ofeducation by facilitating research on, and public understanding of, the roles ofmarriage and the family in society. Mr Bassett pointed out that the family is describedas "the natural and fundamental group unit of society" in a number of internationalconventions to which New Zealand is a party.88[80] The appellant disputed the Court of Appeal's view that objects A–D of theTrust Deed had a common thread of education and research. He argued the real objectwas advocacy.[81] We do not consider it is clear that the objects in the Trust Deed exhibit apurpose of the advancement of education. Object A refers to research, but makes itclear that such research is for the purpose of supporting its views in relation tomarriage and the family. Object C refers to participation in social analysis and debate,which, on its face, is not an educative purpose. Object D refers to publishing relevantmaterial relating to issues affecting families. That could potentially have educativevalue or it could be advocacy. It is not self-evidently educational. Object B refersexplicitly to education but is expressed in the broadest of terms. Again, we see this aspotentially, but not self-evidently, educational.[82] We next consider whether the activities of Family First (that is, the means bywhich Family First is said to advance an educational end) support the proposition thatit exists for the purpose of the advancement of education.88 Article 23 of the International Covenant on Civil and Political Rights 999 UNTS 171 (opened forsignature 16 December 1966, entered into force 23 March 1976) [ICCPR]; the Preamble to theConvention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990); art 10 of the International Covenant on Economic, Socialand Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force3 January 1976); and art 16(3) of the Universal Declaration of Human Rights GA Res 217A(1948). In all cases, however, the term "family" is not defined in the narrow terms adopted byFamily First, though art 23 of the ICCPR and art 16(1) of the Universal Declaration ofHuman Rights both refer to recognition of the right of men and women of marriageable age tomarry and to found a family.[83] Family First argues that it advances education through its dissemination ofresearch reports, generation of public debate (in particular through its Forum onFamilies events), provision of a virtual reading room on its website, and the promotionof and participation in public discourse. We address each in turn.Research reports[84] Family First points to 17 research papers, which it commissioned in the periodbetween 2006 and 2018, exemplifying its educational purpose. The topics of thesereports are:(a) The fiscal benefits of marriage and reducing family breakdown inNew Zealand;(b) Should euthanasia be legalised?(c) An analysis of New Zealand's 2007 Anti-Smacking Law;(d) Child poverty and family structure;(e) Gender identity;(f) Screen time;(g) Teenage sex education;(h) Mothers, day care and child wellbeing in New Zealand;(i) 21 reasons why marriage matters;(j) Young people and alcohol;(k) Child abuse and family structure;(l) Abortion and the physical and mental health of women;(m) Imprisonment and family structure;(n) Why mothers matter;(o) Why fathers matter;(p) The effect of regular family dinners on family life; and(q) Childhood gender dysphoria.[85] Family First distributed these papers to people on its database, and releasedthem publicly, accompanied by a media release. Copies are kept on Family First'swebsite. Some reports were also distributed in schools and churches.[86] As mentioned earlier, the appellant accepted that these reports are of educativevalue and meet the minimum standards in Re Collier.89 However, the appellant arguesthat the reports are tendentious. They were commissioned and disseminated to supportFamily First's point of view, which means they are not genuinely educative. They areused not to educate, but to advocate for, and persuade the reader to, Family First'spoint of view.[87] The High Court Judge described these reports as generally advancing aparticular viewpoint, gathering together existing research in support. He did, however,acknowledge the academic credentials of some of the authors of these publications,particularly Dr Aric Sigman, a British psychologist, the author of the reports on youngpeople and alcohol and on mothers, day care and child wellbeing;90 Glenn Stanton, adirector of a Family Institute in Colorado, the author of the paper on gender identity;91and Professor Rex Ahdar, a Professor of Law at the University of Otago | Te WhareWananga o Otāgo, who prepared the report on euthanasia.92 He also considered that89 See above at [40]. See also the test from Re Collier quoted above at [51].90 Aric Sigman Young People & Alcohol: What does the medical evidence tell us about the legaldrinking age in New Zealand? (Family First New Zealand, 2011); and Aric Sigman Who Cares?Mothers, Daycare and Child Wellbeing in New Zealand (Family First New Zealand, 2012).91 Glenn Stanton Boys, Girls, Other: Making Sense of the Confusing New World of Gender Identity(Family First New Zealand, 2015).92 Rex Ahdar Killing Me Softly: Should Euthanasia Be Legalised? (Family First New Zealand,2014).the report commissioned from the NZIER addressing the financial benefits of marriageand the financial cost of family breakdown was original research by a recognisedresearch and consulting body.93[88] The majority in the Court of Appeal described the authors of these researchreports as varying from employed academics working in a professional capacity,qualified professionals working as self-employed researchers and articulatelaypersons without formal qualification relevant to the report they authored.94 Theyhighlighted another paper prepared by Dr Sigman entitled, We need to talk: Screentime in New Zealand.95 They said this was a good illustration of Family First's purposeof stimulating public debate and participating in public discourse on important socialissues relating to families. The paper highlights problems arising from children havingexcessive discretionary screen time and proposes measures that can be taken to placelimits on the amount of screen time children experience.[89] Additionally, the majority of the Court of Appeal referred to Professor Ahdar'spaper on euthanasia, the NZIER report on the cost to society of family and maritalbreakdown and a paper by a bioethicist, Dr Gregory Pike, on the mental and physicalrisks of abortion for women.96 They saw these reports as resembling a journal articlein the relevant field. The majority also described the way in which these papers werecommissioned by Family First.97 In most cases, this involved Mr McCoskrieapproaching authors to inquire whether they would produce a "New Zealand version"of a report written by a similar "family values" organisation overseas.[90] To determine Family First's continued eligibility for charity status, the Courtmust be satisfied Family First has a purpose of advancing education, having regard tothe activities it undertakes. We begin by recording that we see the method by which93 New Zealand Institute of Economic Research The Value of Family: Fiscal Benefits of Marriageand Reducing Family Breakdown in New Zealand (Family First New Zealand, October 2008)[NZIER Report].94 CA judgment, above n 1, at [103].95 At [110], referring to Aric Sigman We need to talk: Screen time in New Zealand (Family FirstNew Zealand, 2015).96 At [106], referring to Gregory Pike Abortion and the Physical & Mental Health of Women: Areview of the evidence for health professionals (Family First New Zealand, 2018).97 At [102].Family First commissions its research papers as being consistent with the appellant'scontention that the papers were written from a particular viewpoint.[91] While that is not necessarily fatal to a claim to charitable status if the papersare written in an objective and balanced way, we do not consider that requirement ismet in relation to the Family First papers. It is not the Court's role to evaluate themerits behind the positions taken in the 17 research papers and, as mentioned earlier,the appellant accepted the papers met the "minimum standard" limb of the test set outin Re Collier. We do however observe that some of them are papers providing ananalytical basis for a position adopted by Family First or data supporting that position.In that sense, they can be seen as potentially coming within the category of advocacyor, to use the word adopted by Hammond J in Re Collier, propaganda, which meansthose papers are not giving effect to an object of advancing education. Putting itanother way, having reviewed the 17 papers relied on by Family First, we concludethat many of them fall on the "trying to convert" side of the line identified byProfessor Sheridan. We agree with the High Court Judge that much of the materialseeks to advocate for, and persuade people to, Family First's point of view and garnersupport for its efforts to effect (or resist) change in the law or policy in the area towhich the publication relates.98[92] Mr Bassett argued that material that has educational value does not cease to beeducational merely because it is underpinned by a viewpoint. For example, he saideducation provided to pupils in Christian schools, reflecting a Judeo-Christian worldview of family, was still education.[93] We have already accepted that education underpinned by a viewpoint can stillbe education. But we do not accept the Christian schools analogy. A Christian schoolprovides education in accordance with a particular curriculum, and for many subjectsthere is no difference between what is taught in a Christian school and what is taughtin any other school. In the present case, the argument made by the appellant is thatproducing otherwise educational material for the purpose of validating and promoting98 HC judgment, above n 10, at [70]. The papers most obviously in this category are the papers oneuthanasia, the anti-smacking law, gender identity, sex education, mothers and daycare and alcohol(increasing the legal drinking age).a particular cause means the resulting product is not educational but is advocacy of thecause.[94] That brings us to the means by which Family First claims to advance education.We have already discussed the general requirement for an entity's materials to be bothbalanced and objective to qualify under the second head. At the hearing, Mr Bassettreferred to both Professor Ahdar's paper and that of Dr Pike as examples of paperswhere an even-handed approach is taken. It is true that Professor Ahdar's paper hassections on the case for euthanasia and the case against euthanasia, but in relation tothe former, each argument is countered by the contrary view, so the section dealingwith the case against begins with a statement that the points against have been largelycovered in rebutting the points for. The conclusion is emphatic in opposingliberalising the law in relation to euthanasia. The examples from Dr Pike's paper arereferences to a division of views in various studies as to whether, and if so, by howmuch, three specified physical or mental health risks are elevated by abortion. We seethe reports as not being written in the neutral or balanced way that would support aclaim to be advancing education, albeit from a particular viewpoint.Forum on the Family[95] Family First holds annual conferences hosted by Mr McCoskrie, to whichpoliticians and public figures are invited, which feature speakers from bothNew Zealand and overseas. These are known as the New Zealand Forum on theFamily.99 The evidence in the record about the Forum on the Family are the flyersadvertising them, which set out the names and credentials of some speakers, in somecase the names of politicians and others invited to attend and the topics to be addressedby the highlighted speakers. These forums appear to be a combination of informingFamily First's followers who attend and publicising and promoting Family First'sposition on issues such as euthanasia.10099 In one year, the forum was a "road show" involving Mr McCoskrie touring the country speakingin many towns and cities.100 For example, the 2008 and 2009 forums are described as, "bring[ing] together a national networkof pro-family, pro-marriage and pro-life organisations, scholars, lobby groups and leaders thatseek to promote and protect the well-being of families, the role of parents, and the welfare of ourchildren".Virtual reading room[96] Family First posts on its website articles from both international and domesticmedia commentators and others, making those articles accessible to those interestedin them.[97] Mr Bassett argued this could be equated with the provision of a reading room:he called it a virtual reading room. He said the purpose of this was to educate andgenerate debate. He referred us to the decision of In re Scowcroft in which a gift of abuilding containing a reading room was found to be charitable.101 He argued this couldbe applied by analogy to a virtual reading room.[98] Mr Bassett emphasised that some of the material that is accessible from theFamily First website is sourced from organisations that do not share the policypositions of Family First and from mainstream media. Such articles reflect a diversityof viewpoints, including those opposed to the viewpoints of Family First. Theappellant's response to this was that such articles represent a small proportion ofFamily First's activities and are not used to present a balanced view, but to reinforceFamily First's view on various topics. We agree that is true of much of that material.[99] Mr Bassett argued that provision of a virtual reading room was regarded aseducational in Greenpeace 2020.102 In her judgment in that case, Mallon J observedthat the internet can be a forum through which members of the public are educated,depending on the information provided.103 We accept that provision of a virtualreading room could potentially have an educational purpose if the material that is madeavailable is educational in nature. In Greenpeace 2020, Mallon J was considering theeducational value of a research report that was "objective, neutral and balanced" andhad been peer-reviewed, which Greenpeace had made publicly available on itswebsite. We do not see that as analogous to the virtual reading room described byMr Bassett in this case for the reason set out above at [98].101 In re Scowcroft [1898] 2 Ch 638 (Ch) at 641–642. The building was to be maintained "for thefurtherance of Conservative principles and religious and mental improvement". The decision doesnot categorise the purpose of the gift as the advancement of education.102 Greenpeace 2020, above n 76.103 At [116(a)].Participation in public discourse[100] Family First regularly makes submissions to Parliamentary Select Committeesand participates in debates about issues relating to family and marriage and otherissues such as abortion, euthanasia, gender dysphoria, prostitution, anti-smacking law,censorship, availability of alcohol and child poverty. This complements the researchreports and virtual reading room.[101] Mr Bassett referred to this observation of Kiefel J in Aid/Watch:104The submission by the appellant, that its purposes are for the public benefitbecause it generates public debate, cannot be accepted at a number of levels.Its assertion of its view cannot, without more, be assumed to have that effect.Its activities are not directed to that end. If they were directed to the generationof a public debate about the provision of aid, rather than to the acceptance bythe Government and its agencies of its views on the matter, the appellant mightbe said to be promoting education in that area. But it is not. Its pursuit of afreedom to communicate its views does not qualify as being for the publicbenefit.[102] Mr Bassett relied on the italicised sentence in that observation. In essence,therefore, he was saying the submissions and papers generated by Family First aredirected to generating debate and not to persuading others to accept its views. We donot consider that to be the case, based on the material before us.[103] There are some similarities between the present case and that before theFederal Court of Appeal of Canada in Alliance for Life v Minister of NationalRevenue.105 Alliance for Life had objects including to educate "on humandevelopment, human experimentation, reproductive technologies, adoption, abortion,chastity, euthanasia and similar issues affecting human life".106 But the means bywhich it set out to achieve those objects were such that the Court concluded thatdespite the objects stated in Alliance for Life's constituting document, its true missionwas advocating its strongly held convictions on important social and moral issues in aone-sided manner to the virtual exclusion of any equally strong opposingconvictions.107 For that reason, the Court held that Alliance for Life sought to104 Aid/Watch, above n 79, at [86] (emphasis added).105 Alliance for Life, above n 76.106 At [17].107 At [69].advocate its views in a manner befitting the labels "indoctrination" or "persuasion"per Vancouver Society.108 That meant it did not qualify under the second head.The appellant's table[104] We now return to the appellant's table.109 In the third version of the table, thereare two subjects where there are more than 20 items, being euthanasia and censorshipand media (there are 30 plus items for censorship and media), and 12 subjects wherethere are 10 or more items (pornography, parental smacking, parental leave, gambling,gay marriage, punishment of offences, drugs, Easter trading, abortion, sex education,prostitution and brothels and "gender roles, transgender"). Of these, those related tofamily and marriage are parental smacking, parental leave, gay marriage and sexeducation. Others are public issues on which Family First advocates for particularpositions that reflects its values but which cannot be said to be advancing its corepurpose of supporting its view of traditional family and marriage.Are Family First's non-charitable purposes ancillary to its charitable purposes?[105] The appellant argues that even if the objects and activities of Family First inrelation to family and marriage were charitable, its advocacy of its viewpoint onmatters such as the law relating to abortion, euthanasia, smacking, prostitution andother issues are non-charitable and are more than ancillary to any charitable purposes.We will address that issue in more detail later when we consider Family First's statusunder the fourth head but we signal now that we accept the appellant's submission.Comparing this case to Greenpeace 2020[106] Mr Bassett argued that there was no basis to distinguish this case fromGreenpeace 2020. In that case, Mallon J found that Greenpeace was advancingeducation by commissioning independent scientific research and making it publiclyavailable on its website. The fact that Greenpeace then used this research as part ofits advocacy for the environment (also found to be a charitable purpose under thefourth head) did not undermine that conclusion.110 The research referred to was108 At [69], referring to Vancouver Society, above n 20, at [171].109 Discussed above at [32]–[38].110 Greenpeace 2020, above n 76, at [116]–[117].described as "independent scientific research, objective, neutral and balanced, basedon industry-standard modelling techniques" and was "peer-reviewed by anappropriately qualified, independent person".111 Thus, the means by which educationwas said to be advanced was demonstrably unbiased and neutral. We do not consider thiscan be said of much of the material on which Family First relies in this case.Conclusion[107] We conclude that Family First does not qualify as a charity for theadvancement of education. While the objects set out in the Trust Deed do not excludean educational purpose, they are equivocal. The activities of Family First do notsupport the proposition that its purpose is educational. Although the appellantaccepted the research reports have some educative value, most of the material putforward by Family First suggests its primary object is to advocate rather than toeducate. In particular:(a) Many of the papers lack the balance or neutrality needed to legitimatelyfurther an educative purpose in circumstances where the papers expressa clear viewpoint on the subject-matter. Rather, the papers seek topersuade people to Family First's point of view and seek support for itsefforts to bring about (or resist) a change of policy or law.(b) The method of commissioning the papers, with the objective of creatinga local version of an overseas publication supporting Family First'sview on an issue, supports the above conclusion.(c) Family First's forums combine informing its followers with promotingits public policy positions.(d) Family First's reading room contains materials promoting its policyposition, as well as some materials expressing a contrary view. But inthe latter case, much of this is presented in a way that reinforcesFamily First's position.111 At [116(a)].(e) Family First's submissions to Parliamentary Committees andparticipation in public debates on policy issues cannot be said to havethe objective of generating debate but rather of attempting to persuadeothers to its views.(f) Family First's advocacy activities are not merely ancillary to its objectsand activities relating to family and marriage.[108] We turn therefore to the alternative argument advanced by Family First (andits primary argument in the Courts below): does Family First qualify under the fourthhead, any matter beneficial to the community?Fourth head: Beneficial to the community[109] Family First's alternative argument is that it qualifies for registration under thefourth head, a matter beneficial to the community. It says its objects of supporting thefamily and marriage as foundational to a strong and enduring society is a purposebeneficial to the community that is charitable by analogy with other cases. It says itsadvocacy for or against legislative changes in relation to issues of public controversyis not inconsistent with a charitable purpose, citing this Court's decision inGreenpeace (SC).High Court judgment[110] Leaving to one side any attempt to limit the definition of family, the High CourtJudge considered that a purpose of promoting the benefits of a stable unit for societywould likely be charitable.112 He noted that the NZIER research into the fiscal cost offamily breakdown and decreasing marriage rates estimated a cost of upwards of$1 billion a year. Reiterating the qualification regarding Family First's purpose, theJudge said the NZIER report was independent, peer reviewed research, highlightingvarious societal problems associated with family breakdown — this lent considerablestrength to Family First's claim to charitable status.113112 HC judgment, above n 10, at [57].113 At [57].[111] However, the Judge ultimately considered that the true purpose of Family Firstwas to promulgate a singular view of family, which it called the "traditional family".114The Judge did not consider that the evidence established that the achievement of theobjective of promoting the traditional family would be a benefit to the community inthe sense required by charity, particularly if it came at the expense of other forms offamily.115 He observed that the advocacy cases where charitable status had beenacknowledged were scarce, and seemed to be limited to purposes of almost universalacceptance. He did not consider promotion of the traditional family unit, if achieved,would be a public benefit, meaning it did not fall into this category.116[112] The Judge also considered that Family First's purpose of promoting life byreducing access to abortion and opposing euthanasia was a non-charitable purpose thatdisqualified Family First from achieving charitable status, even if its main purposecould be said to be charitable. In this respect, he relied on the decision of theCourt of Appeal in Molloy.117 In Greenpeace (SC), this Court observed that thedecision in Molloy "seems correct".118 He did not consider that Molloy could bedistinguished.119 And he considered that similar concerns could be raised about otherlaw changes promoted by Family First in relation to parental smacking, prostitutionreform and censorship.120Court of Appeal[113] The majority of the Court of Appeal said the assessment of whether there is apublic benefit in a charitable sense requires consideration of the end being promotedand the means and manner of that promotion, referring to this Court's decision inGreenpeace (SC).121 It considered the effect of supporting the role and importance offamilies and marriage was self-evidently beneficial in an analogously charitable sense114 At [60].115 At [64].116 At [65].117 Molloy, above n 25, at 697, as cited in HC judgment, above n 10, at [66]–[67].118 Greenpeace (SC), above n 7, at [73].119 HC judgment, above n 10, at [67].120 At [68].121 CA judgment, above n 1, at [134] and [136].as a public good.122 It drew support for that conclusion from the internationalinstruments referred to earlier.123[114] Unlike the High Court Judge, the majority of the Court of Appeal consideredthe focus on the "traditional family" did not mean that Family First lost the necessaryadvancement of a public, charitable benefit. In this respect, they took judicial noticeof the fact that by far the larger part of the social groups constituting families incontemporary New Zealand, at least in the nuclear family sense, are those based oncivil or religious marriages between men and women.124 They saw this conclusion asconsistent with the progressive approach taken to the question of charitable benefitsunder the fourth head and also as analogous with the moral and mental improvementcases referred to it in Family First's submissions before that Court.125[115] The majority then turned to consider whether Family First had purposes of anon-charitable nature that were more than merely ancillary. They said this questionhad not been considered in any detail by the Charities Registration Board or theHigh Court because both had found the "traditional family" focus of Family Firstdisentitled it to charitable status. They considered remitting the matter to the Boardbut decided not to.126[116] The majority considered that Family First's engagement in the deliberations ofthe community on issues such as abortion, euthanasia, anti-smacking laws, prostitutionreform and censorship "is properly characterised as part of its broader purpose ofsupporting marriage and family as being foundational to a strong and enduringsociety".127 They accepted that Family First's advocacy activities in relation todivorce, prostitution, abortion, smacking, cannabis reform and euthanasia were alsorelated to specific issues where reasonable and informed views may differ so that noone position could self-evidently be said to be in the public interest.128 However they122 At [138].123 See above at [79], n 88.124 CA judgment, above n 1, at [146].125 At [150]–[151].126 At [156].127 At [164].128 At [169]–[170].did not see this as precluding charitable status, particularly in light of Greenpeace(SC).129[117] Having said that, the majority did, however, observe that there are issues onwhich Family First advocates for particular positions, which, while consistent with thevalues which underpin its support of the institutions of marriage and family, are onesthat may fall outside the penumbra of the advocacy of the public goods of family andmarriage as currently recognised. They said that Family First needs to bear this inmind when determining its priorities and activities for the future.130[118] In his dissenting judgment, Gilbert J rejected the majority's conclusion that theinstitutions of the family and marriage are self-evidently beneficial as a "publicgood".131 On his reading, the majority conflated two separate limbs required underthe fourth head. The first is that the purpose must be such as to confer a benefit on thepublic or a section of the public (the benefit component). The second is that the classof persons eligible to benefit must constitute the public or a sufficient section of thepublic (the public component).132 Supporting traditional families is the publiccomponent, not the benefit component. He considered that Family First's advocacyprovided no tangible benefit to families, and thus it was necessary to consider whetherin advocating its specific viewpoints or causes, the ends promoted, or the means andmanner of promotion, were of public benefit in a charitable sense.133[119] Gilbert J noted the endorsement of Molloy by this Court in Greenpeace (SC).He considered that if the entity in issue in Molloy did not qualify under the fourth headeven after Greenpeace (SC), it was hard to see how Family First could do so, giventhe obvious parallels.134 He questioned the majority's conclusion that Family First'sadvocacy on issues of the day was merely ancillary to its main purpose, highlightingalso that the majority appeared to accept that such advocacy was non-charitable.135 He129 At [171]–[174].130 At [176].131 At [197].132 At [197].133 At [198], citing Greenpeace (SC), above n 7, at [76] and [102].134 At [200]–[201].135 At [201]–[203].concluded that Family First's cause advocacy was not of self-evident or establishedpublic benefit such that it qualified under the fourth head of charity.136Self-evident benefit?[120] In the present case, the end of Family First is support of the traditional familyand marriage as foundational to a strong and enduring society.137 It argues this isself-evidently a purpose beneficial to the community. It supports the view of themajority of the Court of Appeal to that effect. It also refers to Object B of theTrust Deed, which refers to educating the public on, among other things, the moralframework of society. It says this is analogous to the decision of the Court of Appealin Latimer v Commissioner of Inland Revenue, where supporting the machinery andharmony of civil society (in that case by assisting Māori in relation to Treaty ofWaitangi claims) was found to be a charitable purpose,138 and analogous with the caseson mental and moral improvement.[121] The appellant argues there is no analogy with Latimer. There, the purpose wasto provide tangible research assistance to claimants, which produced wider publicbenefits to society. There is no such tangible assistance in this case. We agree theanalogy is flawed.[122] In relation to the mental and moral improvement cases, the appellant arguesthe Court of Appeal majority and Mr Bassett in his submissions are wrong to rely onan obiter observation by Dixon J in Barby v Perpetual Trustee Co (Ltd) to the effectthat an object of "raising moral standards or outlook" would be charitable.139 Themajority of the Court of Appeal considered object B of the Trust Deed (education aboutthe moral framework of a just and democratic society) had a clear common characterwith the tangible public benefits broadly classified under the "moral and mentalimprovement" banner. They considered Family First sought to fulfil that purpose byengaging in issues relevant to the role of families in society and core family values.140136 At [204].137 Object A of the Trust Deed, reproduced above at [69].138 Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA).139 Barby v Perpetual Trustee Co (Ltd) (1937) 58 CLR 316 at 324, cited by the Court of Appealmajority: CA judgment, above n 1, at [65] and [151].140 At [152].[123] In contrast, Gilbert J saw object B as involving Family First promoting itsparticular viewpoints, including its view that the traditional family (as opposed toother forms of family) is the fundamental social unit.141[124] When object B is considered in light of the research papers published byFamily First and the evidence of its activities, it becomes clear that the means by whichthis object is put into effect is by Family First advocating for its viewpoint on a numberof moral issues, to achieve outcomes in policy or legislative terms that reflect itsvalues. We do not consider that is analogous with the mental and moral improvementcases relied on by Family First.142 To that, we add that leading commentators havequestioned the correctness of the mental and moral improvement cases, describingScowcroft as "almost certainly wrongly decided"143 and the other judgments as failingto provide a "reasoned argument for the promotion of mental and moral improvementas a general charitable purpose".144 Rather, we will address the question of whetheradvocacy of this kind comes within the fourth head, applying the approach outlinedby this Court in Greenpeace (SC).Legal test to be applied: Greenpeace (SC)[125] This Court's decision in Greenpeace (SC) addressed the position of an entityseeking charitable status that undertakes advocacy of particular causes. As we havefound that Family First's activities fall on the advocacy side of the division betweeneducation and advocacy, its claim for charitable status under the fourth head requiresthe application of the approach outlined in Greenpeace (SC) in relation to advocacy.[126] An entity claiming charitable status under the fourth head (any other matterbeneficial to the community) must establish both that there is a public benefit (or, to141 At [192], in the context of his discussion of the advancement of education.142 In addition to Barby, above n 139, Family First referred to In re Scowcroft, above n 101; In reHood [1931] 1 Ch 240 (CA) (spreading Christian principles); In re Price [1943] Ch 422 (Ch)(carrying on the teachings of Rudolph Steiner); and In re South Place Ethical Society [1980] 1WLR 1565 (Ch) (study and dissemination of ethical principles).143 Picarda, above n 29, at 221.144 Tudor on Charities, above n 66, at [2-264], referring to South Place Ethical Society, above n 142;Scowcroft, above n 101; Hood, above n 142; and Price, above n 142.use Mr Bassett's term, a benefit to the community) and that the purpose is charitableby analogy with objects already held to be charitable in earlier cases.145[127] In Greenpeace (SC), this Court determined by a majority that the politicalpurpose exception should no longer apply in New Zealand. Formerly, this rule meantadvocacy for political purposes was, of itself, a disqualifying factor for an applicantfor charitable status or already registered entities. The majority in Greenpeace (SC)determined that s 5(3) of the Charities Act did not have the effect of confirming bystatute the common law political purpose exception.146[128] The majority considered that it was difficult to construct any adequate orprincipled justification for the political purposes exception.147 They did not considerthat political purposes and charitable purposes were mutually exclusive. They alsoconsidered it was difficult to justify the promotion of legislative reform as beingdisqualifying, when advocacy will in some cases constitute a public good analogousto other good works considered charitable.148 They considered a strict exclusion "risksrigidity in an area of law which should be responsive to the way society works".149The majority continued:150Just as promotion of the abolition of slavery has been regarded as charitable,today advocacy for such ends as human rights or protection of the environmentand promotion of amenities that make communities pleasant may have cometo be regarded as charitable purposes in themselves, depending on the natureof the advocacy, even if not ancillary to more tangible charity. Protectionof the environment may require broad-based support and effort, includingthrough the participatory processes set up by legislation, to enable the publicinterest to be assessed. In the same way, the promotion of human rights (apurpose of the New Zealand Bill of Rights Act 1990, as its long title indicates)may depend on similar broad-based support so that advocacy, includingthrough participation in political and legal processes, may well be charitable.145 Greenpeace (SC), above n 7, at [27]–[31] per Elias CJ, McGrath and Glazebrook JJ (where themajority rejected the alternative view that charitable status can be presumed if self-evident publicbenefit is established). See also at [120] per William Young and Arnold JJ.146 At [55]–[58].147 At [69].148 At [62].149 At [70].150 At [71] (footnotes omitted).[129] The decision to move away from a blanket political purpose exception was,however, qualified as follows:151Advancement of causes will often, perhaps most often, be non-charitable.That is for the reasons given in the authorities – it is not possible to saywhether the views promoted are of benefit in the way the law recognises ascharitable. Matters of opinion may be impossible to characterise as of publicbenefit either in achievement or in the promotion itself. Furthermore, theends promoted may be outside the scope of the cases which have built on thespirit of the preamble, so that there is no sound analogy on which the lawmight be developed within the sense of what has been recognised to becharitable. Even without a political purpose exclusion, the conclusion inMolloy (that the purpose of the Society for the Protection of the Unborn Childwas not charitable) seems correct. The particular viewpoint there beingpromoted could not be shown to be in the public benefit in the sense treatedas charitable.[130] The majority concluded as follows on this issue:152Instead, assessment of whether advocacy or promotion of a cause or lawreform is a charitable purpose depends on consideration of the end that isadvocated, the means promoted to achieve that end and the manner in whichthe cause is promoted in order to assess whether the purpose can be said to beof public benefit within the spirit and intendment of the 1601 Statute.Application to Family First[131] The end that is advocated by Family First is the promotion of traditional(man/woman) marriage and the fundamental nature of the traditional family. And, asjust discussed, it has an end of education about the moral framework for a just anddemocratic society. We do not consider that advocacy for these ends is analogous withthe ends described in Greenpeace (SC) as ends that have come to be regarded ascharitable purposes in themselves (advocacy for such ends as human rights orprotection of the environment and promotion of amenities that make communitiespleasant).153High Court and Court of Appeal[132] The High Court Judge observed that Family First's end of seeking recognitionof the pre-eminence of the traditional family unit also involves seeking a legislative151 At [73].152 At [76].153 At [71].framework that protects that unit, including making divorce more difficult.154 He saidthis would not be a benefit to the community in the charitable sense and could be seento run counter to anti-discrimination provisions in human rights law.155 This wasrejected by the majority of the Court of Appeal on the basis that a policy that was intension with human rights law was not illegal.156Appellant's submission[133] Mr Gunn argued for the High Court position. He said the majority of theCourt of Appeal misunderstood the High Court Judge's position, which did not turnon whether the purpose was illegal. He said promoting the heterosexual marriedfamily as the only authentic sexual bond or the best environment to raise childrenillustrates the issue. An object that involves advancement of the proposition thatsingle, unmarried or homosexual parents are not "authentic" or optimal cannot beconsidered charitable. He said this ran counter to advocacy for human rights, whichGreenpeace (SC) suggested might be a charitable purpose.Family First's submission[134] Mr Bassett noted that the Marriage Act 1955 accommodates legitimatedifferences of view about marriage.157 And he argued that support of the traditionalfamily as foundational to a strong and enduring society is a public benefit to the sectorsof the public that affirm the traditional family and man/woman marriage and wish toreceive educative materials about them, underpinned by Judeo-Christian values.Our assessment[135] We agree with the High Court Judge that an object of promoting the family asfoundational to a stable society could be a charitable object. But we do not agree withthe Court of Appeal majority that Family First's advocacy of the role and importance154 HC judgment, above n 10, at [63].155 At [64].156 CA judgment, above n 1, at [180].157 Marriage Act 1955, s 29(2), which says that no celebrant who is a minister of religion recognisedby a religious body listed in sch 1 and no celebrant who is nominated to solemnise marriages byan approved organisation is obliged to solemnise a marriage if doing so would contravene the"religious beliefs of the religious body or the religious beliefs or philosophical or humanitarianconvictions of the approved organisation".of this particular version of the family and of marriage between a man and a womanis self-evidently beneficial in a charitable sense.[136] As we see it, pursuing support for the traditional family by advocating againstlaw reform which would recognise or support other forms of family can be seen asdiscriminatory. That is problematic for the reasons advanced by the appellant. It istrue, however, as the Court of Appeal majority noted, that advocating such changes isnot illegal.158[137] However, Family First's purposes are themselves discriminatory. As is madeclear in its Principles on Family, Family First affirms the traditional man/womanfamily to be "the natural family"; that this natural family "cannot change into somenew shape" or be "re-defined by social engineering"; and that the marital union is "theauthentic sexual bond, the only one open to the natural and responsible creation ofnew life". As the High Court Judge noted, Family First advocates for measures toprefer the traditional family and disadvantage others, such as amending tax andwelfare law to eliminate disincentives to marriage. It also advocates a fault-based lawfor dissolution of a marriage, placing the weight of the law on the side of the spouseresisting dissolution.[138] None of this is self-evidently beneficial. Nor do we consider that Family Firstcan establish benefit. As Professor Dal Pont observes, where the putative benefit isintangible, a court will need to be convinced that the entity exhibits sufficient publicbenefit to be characterised as charitable.159 And any benefits must be weighed againstany detrimental effects.160 We consider it is highly debatable that the benefitsoutweigh the detriments in this case.[139] We also consider the High Court Judge was correct when he took into accountthe discriminatory aspects of Family First's purposes. He was not just referring toFamily First's advocacy for law changes that would, if enacted, be discriminatory, asthe majority of the Court of Appeal seemed to think. Rather, he was noting the fact158 CA judgment, above n 1, at [180].159 Dal Pont, above n 71, at [3.40].160 Anti-Vivisection, above n 56, at 67 per Lord Simonds.that a purpose to discriminate (or a purpose that includes discriminatory elements) isnot compatible with a charitable purpose.161 We agree with his analysis.[140] For these reasons, we are not persuaded that Family First's purposes arecharitable under the fourth head. Even if we had not reached that view, we would stillhave found against Family First, as we now explain.[141] Turning to the means and manner used to promote Family First's end, we cometo a different view from that of the majority of the Court of Appeal. The majority ofthe Court of Appeal considered that Family First's engagement in the deliberations ofthe community on issues such as abortion, assisted dying, prostitution reform andcensorship is properly characterised as part of its broader purpose of supportingmarriage and family as being foundational to a strong and enduring society.162 Wedisagree. We do not see engagement with those issues (or others such as alcoholreform and gambling) as merely ancillary to that broader purpose. That means that,in order to maintain its charitable status, Family First must establish that advocatingfor or against reform of the law relating to abortion, euthanasia and the like is, itself,charitable.[142] It cannot do this. These are free-standing political issues. To use the words ofthe majority in Greenpeace (SC), a standalone object that is not merely ancillary "mustitself be an object of public benefit or utility within the sense used in theauthorities".163 These are issues on which there are differing views: they involve theadvancement of causes. It is not possible to say whether the views that are promotedare of benefit in the way the law recognises as charitable; they are matters of opinion.Nor is it possible to characterise their promotion or even the achievement of what isadvocated for as charitable.164161 This view is supported by Canada Trust Co v Ontario Human Rights Commission (1990) 74 OR(2d) 481 (ONCA) at 495–496. See also Adam Parachin "Public benefit, discrimination and thedefinition of charity" in Kit Barker and Darryn Jensen (eds) Private Law: Key Encounters withPublic Law (Cambridge University Press, Cambridge, 2013) 171 at 174–175.162 CA judgment, above n 1, at [164].163 Greenpeace (SC), above n 7, at [103].164 See above at [129]; and Greenpeace (SC), above n 7, at [73].[143] Unlike the situation discussed in Greenpeace (SC), advocacy of these causesis not advocacy for ends that are themselves charitable, like human rights, theprotection of the environment or public amenities.165 That is an important differencebetween the present case and Greenpeace (SC).[144] The quantitative information in the appellant's table illustrates the focus ofFamily First on activities that are not pursuit of the advancement of traditionalfamilies.166 While the shortcomings of this information are acknowledged, the tableillustrates that topics which, in our assessment, are not ancillary to the advancementof the traditional family and marriage are a significant part of Family First's activities.This was the conclusion also reached by Gilbert J in the Court of Appeal, theHigh Court Judge and the Charities Registration Board, none of whom had beforethem the appellant's table.[145] The majority of this Court in Greenpeace (SC) said they considered that thedecision of the Court of Appeal in Molloy "seems correct", notwithstanding the factthat the political purpose exception was no longer good law.167 The entity in issue inthat case was the Society for the Protection of the Unborn Child (SPUC). It opposedany change in the law to make abortion more freely available. It claimed charitablestatus, but the Court of Appeal ruled that it did not qualify.[146] There is some similarity between the objects of SPUC and those ofFamily First. The objects of SPUC included to "encourage and promote study andresearch and the collection and dissemination of information on the moral, medical,legal, political and social implications of pregnancy" and to "inform and educate thepublic on the need for legal and other safeguards for protecting and preserving therights of unborn children".168165 At [71].166 See above at [104].167 Greenpeace (SC), above n 7, at [73], referring to Molloy, above n 25.168 Molloy, above n 25, at 692.[147] As Gilbert J noted in his dissenting judgment, Molloy is the New Zealand casethat is most closely analogous to the present case.169 Even the majority in theCourt of Appeal in the present case acknowledged this position. They said:170 there are issues on which Family First advocates for particular positionswhich, whilst consistent with the values which underpin its support of theinstitutions of marriage and family, are ones that may fall outside thepenumbra of the advocacy of the public goods of family and marriage ascurrently recognised. Issues such as divorce, alternative forms of marriageand, as the Supreme Court recognised when acknowledging the apparentcorrectness of the decision in Molloy v Commissioner of Inland Revenue,abortion, may fall within that category. Family First will need to bear that inmind as it determines its priorities and activities for the future.[148] We agree with Gilbert J that, if SPUC in Molloy would not qualify under thefourth head even after Greenpeace (SC), it is hard to see how Family First could doso. We would delete the word "may" where it appears in the quotation from themajority judgment in the Court of Appeal set out above. As we see it, the advocacypurpose and activities of Family First cannot be distinguished from those of SPUC inMolloy and we do not think they can be said to be within the penumbra of advocacyfor the traditional family and marriage. As Gilbert J notes, the majority do not explainwhy they considered these activities were ancillary to that purpose.171 In effect, theirconclusion was that one advocacy purpose was ancillary to another advocacy purpose.Conclusion[149] We conclude that Family First does not qualify as a charity under the fourthhead.Rule 20A notice: Molloy[150] Family First gave notice that it supported the judgment under appeal on anotherground, namely that this Court should overrule Molloy and depart from the observationin Greenpeace (SC) that Molloy seems correct, notwithstanding the demise of thepolitical purpose exclusion. Mr Bassett submitted the Court should reconsider Molloyin such a way that permits education regarding abortion and discourages the use of the169 CA judgment, above n 1, at [200].170 At [176] (footnote omitted and emphasis added).171 At [202].Molloy decision in lower courts as an exclusionary rule of general application. Hedescribed the decisions of the Charities Registration Board and the dissent in theCourt of Appeal (and by extension the High Court judgment) as seeking "to closedown all conservative education and debate on the issue of abortion by charities". Hepointed out that an entity on the other side of the abortion debate was found to havecharitable objects in Auckland Medical Aid Trust v Commissioner of InlandRevenue.172[151] We do not intend to revisit Molloy or the observation about its correctness inGreenpeace (SC). The observation in Greenpeace (SC) recorded that the majority inthat case did not see the change that had been made to the political purpose exclusionas affecting the analysis in Molloy in a way that would call into question the outcomein Molloy. We do not consider that observation was in error or needs correction.[152] We do not intend to engage in the debate about the Auckland Medical Aid Trustcase. That decision cannot fairly be characterised as simply a decision to confercharitable status on an entity advocating for more liberal abortion law when Molloydenied it for an entity advocating for a more restrictive regime. The facts of the caseand the analysis leading to the conclusion are more complex and nuanced than that.Neither case is before us. The majority in Greenpeace (SC) expressed no view aboutthe correctness of the Auckland Medical Aid Trust case. Neither do we.[153] More generally, one of the affidavits of Mr McCoskrie filed after theCourt of Appeal hearing identified a number of other entities that have taken anopposing position to that of Family First on issues such as abortion, cannabis lawreform, gender identity and gay marriage, all of which are registered charities. We donot know the basis on which these entities achieved charitable registration or underwhich head they qualified. It may be that in their cases, the advocacy they undertookwas ancillary to a recognised charitable purpose or was undertaken to advance arecognised charitable end such as advancement of human rights. If the purpose ofpresenting this information was to suggest that entities that have the object ofadvocating for the liberal side of a political debate are regarded as charitable while172 Auckland Medical Aid Trust v Commissioner of Inland Revenue [1979] 1 NZLR 382 (SC).those that have the object of advocating for the conservative side are not, we do notaccept that proposition. In principle, an entity that has non-ancillary purposes ofadvocacy on free-standing political issues will not be entitled to charitable status,whatever side of the debate it is on. It is the lack of any means available to the Courtto judge the public benefit of a political issue that will usually count against charitablestatus. That applies equally to both sides of any political debate.Fiscal considerations[154] CLAANZ submitted that the fact that obtaining charitable status has taximplications favouring the entity on which the status is conferred should not influencedecision-makers in determining whether to recognise a new type of purpose ascharitable in law.173 Mr Bassett supported that submission. CLAANZ argued that thisassumes the tax advantages for a charity are concessions from tax law, when it canequally be argued the non-taxability of charities is part of the definition of the tax base.We do not see that as altering the fact that there is a more favourable tax position foran entity that has charitable status than for an entity that does not.[155] CLAANZ's submission challenges the approach taken in Greenpeace (SC),where the majority observed that determining what constitutes a charitable purpose bythe method of analogy to objects already held to be charitable was "the safer policysince charitable status has significant fiscal consequences".174 We do not consider anycorrection of that statement is required. The fiscal consequences are a reality thatcannot be ignored. The Court in Greenpeace (SC) was not suggesting the fiscalconsequences are a controlling factor, but rather that changing the analogical approachthat has been followed may be outside what Parliament intended when it effectivelydetermined that the pre-existing law should continue to apply. The only reason toreverse the statement made in Greenpeace (SC) would be if we were minded toabandon the analogical approach. We do not consider there is any good reason todepart from this methodology, which is long standing, was confirmed so recently in173 It cited in support of this Re Queenstown Lakes Community Housing Trust [2011] 3 NZLR 502(HC) at [78] per MacKenzie J.174 Greenpeace (SC), above n 7, at [30] (footnote omitted). A similar position was taken by theSupreme Court of Canada in Vancouver Society, above n 20, at [200] per Iacobucci J for themajority.Greenpeace (SC) and reflects the common law method of incremental developmentof the law to adjust to societal changes.Section 14 of the Bill of Rights[156] CLAANZ submitted that the withdrawal of charitable status from an entity thatengages in political advocacy may be an impermissible interference with the entity'sfreedom of expression under s 14 of the Bill of Rights. This is said to arise becausethe entity loses the tax advantages that go with charitable status if that status iswithdrawn.175 This argument was raised in the Court of Appeal, but the Court did notengage with it.176[157] The same argument (in the context of a case about registration) was rejectedby the Court of Appeal in Re Greenpeace of New Zealand Inc, the decision that wasunder appeal in Greenpeace (SC).177 It found that a refusal to register as a charity anentity engaging in activities that had political objects did not breach s 14 of theBill of Rights. Logically, the same must apply to the deregistration of an entity thathas been registered as a charity. The Court of Appeal in Re Greenpeace cited withapproval the following extract from the decision of the Canadian Federal Court ofAppeal in Human Life International in Canada Inc v Minister of National Revenue:178With respect to the Charter argument based on alleged infringement offreedom of expression, the basic premise of the appellant is untenable.Essentially its argument is that a denial of tax exemption to those wishing toadvocate certain opinions is a denial of freedom of expression on this basis.On this premise it would be equally arguable that anyone who wishes thepsychic satisfaction of having his personal views pressed on his fellow citizensis constitutionally entitled to a tax credit for any money he contributes for thispurpose. The appellant is in no way restricted by the Income Tax Act fromdisseminating any views or opinions whatever. The guarantee of freedom ofexpression in paragraph 2(b) of the Charter is not a guarantee of publicfunding through tax exemptions for the propagation of opinions no matter howgood or how sincerely held.175 This argument can be seen to run counter to the argument just addressed, that fiscal consequencesare irrelevant.176 CA judgment, above n 1, at [181].177 Re Greenpeace of New Zealand Inc [2012] NZCA 533, [2013] 1 NZLR 339 at [59]–[60]. See alsoBetter Public Media Trust v Attorney-General [2020] NZHC 350 at [80].178 Human Life International in Canada Inc v Minister of National Revenue [1998] 3 FC 202 (FCA)at [18].[158] CLAANZ argued that an analogy could be drawn with the Ontario decisionCanada Without Poverty v Attorney-General of Canada.179 In that case, theOntario Superior Court declared unconstitutional a rule of the Canada RevenueAgency restricting the proportion of income a charitable entity may expend onpolitical advocacy and the distinction drawn between political and charitable activitiesin the relevant legislation. The rule was said to be unconstitutional because it violatedthe freedom of expression provision in s 2(b) of the Canadian Charter of Rights andFreedoms. We do not see that case as persuasive in the present situation. It concerneda rule limiting the freedom of expression of an entity that had charitable status. Thatis different from the present situation, where the issue is whether Family Firstcontinues to meet the statutory requirements for charitable status. The reasoning inHuman Life International in Canada applies.[159] CLAANZ also cited an article by Jane Calderwood Norton, in which shesuggests that a Bill of Rights approach to a decision on charitable status may requirea more expansive view of benefit when assessing entities engaged in advocacy andother political expression.180 However, that was qualified by her later observation that,while entities that provide information to the public to ensure they are informed aboutproposed legislation and policy matters can be seen to be supporting democraticgovernment, an entity that seeks to advocate for one side of a contentious disputemight have greater difficulty in demonstrating that it supports that same value. And,earlier in the same article, Dr Norton opines:181There does not appear to be convincing authority for the argument thatremoving or denying charitable status is a limitation on freedom of expression.Removal of charitable status is more akin to the permissible withdrawal of astate subsidy rather than the suppression of political expression.[160] We agree with that conclusion.179 Canada Without Poverty v Attorney-General of Canada 2018 ONSC 4147, (2018) 142 OR (3d)754.180 Jane Calderwood Norton "Charities and freedom of expression" [2019] NZLJ 174 at 178.Dr Norton also observes that: "An organisation that seeks to take rights away from individuals orgroups in society might have an even harder time showing that their purpose is beneficial": at 178.That arguably applies to the discriminatory aspects of Family First's objects.181 At 176.Result[161] For the above reasons, the appeal is allowed. We conclude that theCharities Registration Board was correct to resolve that Family First be de-registered.The declaration made by the Court of Appeal that Family First qualifies forregistration under the Charities Act is set aside.Costs[162] The appellant indicated that he was content for costs to lie where they fall. Wetherefore make no award of costs.WILLIAMS J[163] I agree with the conclusions reached in the reasons given by O'Regan J andwish only to add a few comments of my own in relation to charitable purpose. Firstly,I acknowledge that since at least 1805, and probably before that, the law has studiouslyavoided the imposition of hard-and-fast boundaries between charitable andnon-charitable purposes.182 Instead, the approach has been one of evolving delineationthrough decisions over time. This flexibility has enabled (it is said) the legal conceptof charitable purpose to keep pace with social change.183 Such change has relevantlyincluded: the decline of village or parish communities and the rapid growth of largebut segmented urban communities; the equally rapid growth of religious, political andethnic diversity and the eventual acceptance of diversity as a core liberal democraticvalue; and the replacement of the Church by the welfare state as the primary provider182 Morice v Bishop of Durham (1805) 10 Ves Jun 522, 32 ER 947 (Ch) declared that "charitablepurposes" are those found in the Preamble to the Charitable Uses Act 1601 (Eng) 43 Eliz I c 4[Statute of Elizabeth] or which by analogy fall within its spirit and intendment. The Moricejudgment did however reduce the scope of charitable purpose by rejecting an old line of authoritywhich appeared to accept that the only qualification was bestowal of public benefit, and addingthat the donor's purpose must also conform with the spirit of the list of purposes in the Preamble.In this way, Morice effectively chose to privilege flexible incremental elaboration by analogy overhard-and-fast rules.183 Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169 at [64]. See also thediscussion in G E Dal Pont Law of Charity (2nd ed, LexisNexis, Chatswood (NSW), 2017) at 20,referring to several authorities at n 33 for the proposition that the legal concept of a charity is notstatic, but rather is flexible enough such that it "moves, changes and evolves with prevailing ideasabout social values and attitudes in the society in question". Writing in 1890, the Supreme Courtof California remarked in Attorney-General v Dashaway Association 84 Cal 114 (1890) at 122that the meaning of charity can transform to reflect "new fields and opportunities for humanaction" and the "differing condition, character, and wants of communities and nations".of what each generation considers are core community supports. Charitable purposeshave indeed evolved in response to these new contexts.184[164] But one problematic effect of adaptive incrementalism with little guidance inprinciple has been the steady encrustation of contradictory decisions onto thecharitable purpose canon — especially under the fourth (analogous) Pemsel head.185The modern growth of advocacy-based organisations seeking charitable status hashighlighted the problem. Whatever public benefit such advocacy may be said toprovide, it will almost always be less direct and less tangible than that provided by'works'-based charities.186 For that reason, I have found it necessary, when thinkingabout the issues arising in this appeal, to begin (if only briefly) at the beginning.[165] All societies place a high value on non-transactional giving to community; thatis, on giving to support one's wider community without expecting equivalent value inreturn (at least not in this life). It is one of the key ways in which social cohesion issupported. So, all cultures and religions (and therefore all legal systems) encourage184 See, for example, the authorities cited in Greenpeace, above n 183, at [70]–[71], includingLatimer v Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA) (subsequently overruled bythe Judicial Committee of the Privy Council but on different grounds); Incorporated Council ofLaw Reporting for England and Wales v Attorney-General [1972] 1 Ch 73 (CA); andJackson v Phillips 96 Mass 539 (1867).185 See, for example, Jackson, above n 184 (accepted that a bequest to promote the abolition of slaverywas charitable but not a bequest for promoting women's rights); and Re Cranston (deceased),Webb v Oldfield [1898] 1 IR 431 (CA) (accepted promotion of vegetarianism in London andManchester was charitable by analogy). Growing the corpus of recognised "charitable purposes"by analogical reasoning means charity law has, some say, "built up not logically but empirically"(Gilmour v Coats [1949] AC 426 (HL) at 448–449), leading to a "great body of law" which may"appear illogical and even capricious" as its "guiding principle is so vaguely stated": at 443. InOppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297 (HL), Lord Normand said charitylaw's general tendency towards historicism and analogy privileges empirical (rather than logical)development, which has "baffled efforts to reduce the law to systematized definitions": at 309.186 Greenpeace, above n 183, at [102].such giving, whether by requiring it as a condition of membership or by incentivisingit within the life of the community.187[166] In the common law tradition, a convenient starting point is the Christiandoctrine that made selfless giving to church and the needy a duty of all good Christiansof means.188 The word used by Paul (who was Greek-speaking) in his epistle to theCorinthians to convey this Christian concept of selfless love was agape.189 When theRoman Empire adopted Christianity as its official religion and the scriptures weretranslated into Latin, agape became caritas.190 And when the first State-sponsored andsanctioned English language version of the Bible was completed in 1611 by scholarsworking under the direction of King James I, caritas became charity.191 Most Englishversions of the Bible that pre-dated the King James version, and most modern versions,have preferred love as the better English rendering of caritas or agape.192 It will comeas no surprise that the Māori language versions of the Biblical references just cited use187 Tikanga Māori for example promotes social responsibility and cohesion by placing a high valueon giving to one's whānau, hapū or iwi, and to manuhiri (one's guests). Core tikanga valuesreflect, or at least approximate, the multi valent English language idea of charity — aroha forcharity itself, whanaungatanga for obligations to one's community, kaitiakitanga for theresponsibility to nurture community and place, mana for individual and community dignity,manaakitanga for generosity to outsiders and tika for social justice. In a completely differentcontext, wealthy Roman citizens had an implicit obligation to give generously to the poor, andlegal mechanisms like the fideicommissum (an ancestor of the trust) could, it seems, be invokedto secure compliance with the donor's wishes (see C E F Rickett "Charitable Giving in Englishand Roman Law: A Comparison of Method" (1979) 38 CLJ 118). Relatedly, in Islam, the Waqfarose in the 7th century to provide for permanent charities seeking to advance social objectsincluding infrastructure, socio-economic development and education (see Islamic Relief AcademyComparing the Effectiveness of Waqf and English Charitable Trusts (2015) at 7).188 Matthew 5:42–44 and 22:39–40 (King James Version).189 1 Kórinthos 13:1–13. A variation of the word agape also utilised in these verses is agapen. Seethe Online Greek Bible available at <www.greekbible.com>.190 1 Corinthios 13:1–13. A variation of the word caritas also utilised in these verses is caritatem.See the Latin Vulgate Bible available at <www.vulgate.org>. The Vulgate Bible was firstcommissioned in 382 AD.191 1 Corinthians 13:1–13. This work began in 1604, making it roughly contemporaneous with theStatute of Elizabeth, above n 182. King James I was crowned in 1603 following the death ofQueen Elizabeth I.192 Older bible translations which preferred the word "love" include the Tyndale Bible 1534; theCoverdale Bible 1535; the Matthew Bible 1537; the Great Bible 1539; the Geneva Bible 1560;and the Bishops' Bible 1568. Modern day bible translations which prefer the word "love" includeYoung's Literal Translation 1862; the English Revised Version 1885; the American StandardVersion 1901; the World English Bible 2000; and the Lexham English Bible 2010.See <http:///www.studybible.info> for each bible.the term aroha to convey the same message.193 That is because the match betweenaroha and agape or caritas is very close.[167] Writers such as Professor Dal Pont and Gareth Jones have traced the migrationof the scriptural idea of "charity" into medieval canon law generally, and the work ofthe English ecclesiastical courts specifically.194 Operating under its (then) exclusivejurisdiction over testamentary causes, the ecclesiastical courts applied principles ofcanon law to enforce charitable bequests.195 The beginnings of what have becomeknown as the special privileges of charity law were developed in that court.196 But bythe 15th century, the Chancellor had established a parallel jurisdiction for enforcingcharitable gifts and eventually, the ecclesiastical courts were displaced by theCourt of Chancery. Even then, the Church retained a supervisory jurisdiction overcharities until approximately the 18th century.197 Most importantly, however, theChancery Courts adopted and adapted the body of law developed by its predecessor.[168] So, the common law of charity, with its historic and linguistic provenance inscripture, should not ignore the caution that mere giving, even to deserving causes, isnot charitable, if the way it is done is self-regarding. This was the point Gray J madein the Massachusetts Supreme Court when he accepted that a charitable gift is"whatever is given for the love of God, or for the love of your neighbor free fromthe stain or taint of every consideration that is personal, private or selfish".198 A193 Matiu 5:42–44 and 22:39–40; and 1 Koroniti 13:1–13. The text generally accepted as authoritativein te reo Māori is the 1868 translation of Te Paipera Tapu, although a te reo Māori version of theentire New Testament had been printed by William Colenso in 1837. See Te Paipera Tapuavailable at <www.paiperatapu.maori.nz>.194 Dal Pont, above n 183, at 79–82; and Gareth Jones History of the Law of Charity 1532–1827(Cambridge University Press, Cambridge, 1969) at ch 1. See also R H Helmholz "The Law ofCharity and the English Ecclesiastical Courts" in Philippa Hoskin, Christopher Brooke and BarrieDobson (eds) The Foundations of Medieval English Ecclesiastical History (Boydell Press,Woodbridge, 2005) 111.195 Helmholz, above n 194.196 Dal Pont, above n 183, at 79–82; and Jones, above n 194, at ch 1.197 The Statute of Elizabeth provided for a commission procedure to supervise the administration ofcharitable funds. One of the commissioners had to be the Bishop of the diocese in recognition ofthe Church's historic role in delivering charitable services: Jones, above n 194, at 40. For variousreasons, the commission procedure fell into disuse, with the last commission under the Statute ofElizabeth being sealed in 1787: at 160.198 Jackson, above n 184, at 556 (emphasis added), referring to the definition proposed in argumentby Horace Binney in Vidal v Mayor of Philadelphia 43 US 127 (1844). As noted by Gray J,Mr Binney's definition was endorsed by the Supreme Court of Pennsylvania in Price v Maxwell28 Pa 23 (1857) at 35 ("If we were to attempt a definition which would embrace all gifts forcharitable uses, we should adopt the language of Mr Binney, as expressed in his argument inVidal").purpose that, in its nature or implementation, is substantially self-regarding is not, Isuggest, a charitable purpose. Before going on to explain my heresy, let me providefour caveats.[169] First, I am not suggesting that charity law should be re-clothed in its originalreligious meaning. The common law and the Church parted formal company a longtime ago and, in fact, the late 16th and early 17th century statutes in relation to thecontrol of charitable uses were very much a part of that process of displacing thepolitical and legal power of the Church and substituting Parliament and the secularcourts.199 My point is a different one. It is that by understanding the older doctrinalfoundations of charity, underlying principles may be discerned that can still perform auseful organising function without disrupting our long preference for adaptiveincrementalism. Those principles may help to avoid further inconsistency by guidingthe search for true analogues. Principle can mitigate the tendency to unduesubjectivity. It is a problem to which this subject is prone, due perhaps to theuntethering of charity law's technical rules from their principled beginnings.200[170] Second, I am not saying that the court must look into the heart of the donor orentity to determine whether their intent is sufficiently altruistic.201 I accept that theapproach of the law has been primarily instrumental and unconcerned with motive.Subject to a few contradictory exceptions, that has proved workable because the casesoverwhelmingly relate to charitable works.202 The works can speak for themselves.Pure advocacy of ideas or doctrines is different. Advocacy is less tangible, more prone199 Charitable Uses Act 1597 (Eng) 39 Eliz I c 6; and the Statute of Elizabeth, above n 182.200 As noted above at [163], n 183, the inherent flexibility of charity law has enabled it to keep pacewith changing social values. While that may be virtuous, the system relies on judges acting asneutral gatekeepers regulating access to the benefits of charitable status. Some may not be equalto the task, especially given the historical tendency for judges to be drawn from a narrow socialmilieu. Such is the danger of the law's aversion to hard-and-fast rules in circumstances wherecharity's original principle of selflessness has fallen away. But see my comments below at[179]–[180].201 See Dal Pont, above n 183, at 21–23; and Hoare v Osborne (1866) 1 LR Eq 585 (Ch) at 588.202 See, for example, cases where an arguably selfish gift qualified as charitable because the law lookspast subjective motives and focuses the analysis on whether the gift can objectively becharacterised as publicly beneficial in the charitable sense: Hoare, above n 201; Re King,Kerr v Bradley [1923] 1 Ch 243 (Ch); Re Delius (deceased), Emanuel v Rosen [1957] 1 Ch 299(Ch); Grant v Commissioner of Stamp Duties [1943] NZLR 113 (SC); and Re Spence, BarclaysBank Ltd v Mayor of Stockton-on-Tees Corp [1938] 1 Ch 96 (Ch).to ambiguity, and therefore less straightforward. It requires closer attention to theobjective character of the donor's purpose.[171] Third, I accept, of course, that charitable giving will often involve a degree ofself-interest. The payment of chantries to the Church helped, it was believed, to ensurethe donor or their candidate obtained blessings in the next life,203 while in moderncontexts, gifts for parks, buildings or university endowed chairs often come with thecondition that the thing funded be named for the donor (or that it be in honour ofpersons close to the donor).204 Gifting public infrastructure to one's own community,for example, will typically also involve self-interest because the donor will, byco-residence, enjoy the fruits of their own charity.205 But there is, or ought to be, asignificant asymmetry in the exchange — the personal benefit to the donor will be faroutweighed by the public benefit generated.206 Put another way, where a purportedlycharitable gift is made but the relevant benefits flow disproportionately to the donor(or their privees) rather than the wider public, there has, in truth, been no gift at all.[172] Finally, and perhaps obviously, selflessness is in my view a necessary but notsufficient pre-condition for charitable purpose. The well-established rules governing203 Nelan v Downes (1917) 23 CLR 546, as cited in Dal Pont, above n 183, at 64 for the propositionthat gifts for the saying of masses can qualify as a charitable purpose even if the "donor expects aspiritual advantage, whether personally or to another". See also Re Hetherington (deceased)[1990] 1 Ch 1 (Ch) where the testatrix gifted money for the saying of masses "for the repose ofthe souls" of her family and herself after death. The gift was found to be charitable.204 See, for example, Re Mair (deceased) [1964] VR 529 (SC); McGrath v Cohen [1978] 1 NSWLR621 (SC); and Cram Foundation v Corbett-Jones [2006] NSWSC 495. See also the authoritieslisted above at n 202. Additionally, in Donald Poirier Charity Law in New Zealand (Department ofInternal Affairs, June 2013) at 102, the author gives one example of self-interested charitablegiving where he said it is considered that Howard Hughes created the Howard Hughes MedicalInstitute as a mechanism for tax avoidance but it is one of the most important charitableorganisations for carrying out biomedical research.205 See, for example, infrastructural gifts such as those listed in the Preamble to the Statute ofElizabeth (repair of bridges, havens, churches, causeways, sea banks and highways).206 I acknowledge that there are historical cases which have upheld as charitable trusts in whichpreference was to be given to a private class such as the donor's family or descendants. See, forexample, Spencer v The Warden and Fellows of All Souls College, Oxford (1762) Wilm 163,97 ER 64; and Re Christ's Hospital (1889) 15 App Cas 172 (PC). Similarly, inAttorney-General v Sidney Sussex College (1869) LR 4 Ch App 722 (Court of Appeal inChancery), a devise of land to colleges at Oxford and Cambridge for the education of the testator'srelations was assumed to be charitable, although the central question was one of constructionrather than charitability. These cases (amongst others) are discussed in Jonathan Garton PublicBenefit in Charity Law (Oxford University Press, Oxford, 2013) at 117–118. In my view thosecases are wrong in principle and ought not to be followed. Compare Latimer, above n 184, inwhich funding research for claimants in the Waitangi Tribunal — almost all of whom representediwi and hapū — was held to be a charitable purpose. This on the basis that the purpose isanalogous, and iwi and hapū are communities rather than private classes of individuals.qualification for charitable status are not displaced, but charity law's originalunderstanding of selfless giving can operate as a touchstone or organising theory toassist in dealing with the difficult cases.[173] With those caveats in mind, and as Re Greenpeace of New Zealand Inc held,especially with respect to advocacy, the charitable purpose inquiry is not just aboutends.207 Charity also consists in the manner and means by which the end is to beachieved.208 The less self-evidently charitable the purpose of the giver, the moreimportant the manner and means of achieving it become. Determining whatconstitutes charitable education and what qualifies as an analogous (fourth head)purpose will often require consideration of manner and means issues. This is whereunderlying principles can do some of the lifting.[174] First, education. Charitable education is not a narrow concept.209 It is not justgiving to schools, polytechnics and universities. It includes disseminating informationand propagating ideas in the widest sense.210 But the law still distinguishes betweenproviding for education which is a charitable purpose and supporting the distributionof "propaganda" which is not.211 The problem is that in this wider sense, onedisseminator's education is another's propaganda. Deciding which is which can be atroublingly subjective exercise, and the line dividing one from the other can bedifficult to discern in practice.212 It is sometimes just a matter of degree.[175] One-sided promotion of personally held views or views one supports is noteducation in the charitable sense. Nor is disseminating information that only reflectsthe disseminator's view. Why this is so, in principle, is important. There are, I suggest,two reasons why even if the subject matter is of great social importance, theone-sidedness of the material neutralises its educative utility. First, promoting onlyone side of an idea or cause can detract from the cohesiveness of our pluralisticcommunity because it ignores other perspectives on the same thing. Second, it does207 Greenpeace, above n 183, at [76].208 At [76].209 See the reasons given by O'Regan J at [51]–[55].210 Juliet Chevalier-Watts Law of Charity (2nd ed, Thomson Reuters, Wellington, 2020) at 141.211 Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL) at 564 perLord Bramwell dissenting. See also Re Collier (deceased) [1998] 1 NZLR 81 (HC) at 91–92.212 L A Sheridan "The Political Muddle – A Charitable View?" (1977) 19 Mal L R 42 at 70.not respect individual dignity either, because it does not set out to empower thereceiver to make up their own mind.213 To the contrary, it can disempower the receiverby failing fairly to inform them of alternative views on the subject. Indeed, suchself-referential manner and means may actually produce social disbenefit. One-sidedinformation is not about community; it is about self.[176] That does not mean that charitable education must be opinion-neutral. Farfrom it. The contest of ideas and perspectives is an important means by which liberaldemocracies such as ours adapt and thrive. And it is one of the protectors of ourdiversity. The advocate can still educate in a charitable sense, but their advocacy mustacknowledge alternative perspectives fairly and respectfully. Such advocacy will beeducation because by acknowledging other perspectives it empowers the receiver tocome to their own view. So, material that seeks to persuade in this way can beeducative. The question to my mind is whether the persuading is done in a mannerconsistent with the underlying non-self-referential values of charity. There is, ofcourse, no getting away from the fact that drawing the line between charitable andnon-charitable education in advocacy cases will be a question of degree requiring anoverall assessment, but that is where underlying principles can guide adaptiveincrementalism.[177] In this case, Family First's advocacy is plainly too one-sided and therefore tooself-referential to be education in the charitable sense. That overall impression is notmitigated by the occasional more balanced exception in the materials provided to theCourt. Those exceptions serve only, through contrast, to confirm that there is no giftat all.[178] Turning then to the indefinite analogous head of charity, similar issues arise,and again, especially with respect to advocacy. Charities law has always beensceptical of situations where the stated purpose is advocacy for an idea, doctrine orperspective. This is for two reasons, I suggest. First, it is inherently difficult todemonstrate that mere advocacy produces tangible outcomes of public utility.214 Not213 See discussion on political purposes, autonomy and altruism in Matthew Harding Charity Lawand the Liberal State (Cambridge University Press, Cambridge, 2014) at ch 6.214 Greenpeace, above n 183, at [114].impossible, but difficult. Second, as noted in Greenpeace by reference to theAmerican Restatement on Trusts, "a charitable trust does not exist to give satisfactionto those who believe in the cause it promotes".215 In other words, advocacy will oftenbe too self-referential to meet the benefit requirement. Greenpeace did not changeany of this. Rather, it confirmed that the gateway for pure advocacy-based purposesis narrow and provided a more satisfactory conceptual framework for analysis thandid the problematic political purpose exception.216[179] Some (analogous) purposes are, it is said, self-evidently charitable. Thepromotion of human rights, protection of the environment and (in our particularcontext) the promotion of post-colonial reconciliation are among the examplesreferred to.217 Self-evidently charitable perhaps means no more than that the courtaccepts there is broad consensus in the community about the utility of the purpose interms of its contribution to social cohesion and well-being, and its consistency withunderlying societal values, and that advocating for it will therefore also be charitable.That is not to say there must be social unanimity about the purpose's benefits. Nor isit to say that agreement on how, or how far, the purpose should be pursued is required.It is just to accept that there is sufficient consensus about the purpose to suggest it hasbecome as self-evidently charitable as the promotion of religion, the advancement ofeducation and the relief of poverty. And as with the specific heads of charity, mannerand means will still be important.[180] That said, promoting controversial causes or ideas will not of itself bedisqualifying.218 This is consistent with authority and (more importantly) the pluralistunderpinnings of our democratic culture.219 As noted in the education context, thecontest of ideas and perspectives is a predicate for a thriving community. But care isobviously needed, and it is perhaps in this context that manner and means, and the215 At [32], referring to American Law Institute Restatement of the Law (Third): Trusts (St Paul,Minnesota, 2007) at pt 3 ch 6 § 28.216 At [72]–[76].217 At [70]–[71], citing Latimer, above n 184, and the Charities Act 2006 (UK), s 2(2)(h). Thecorresponding section in the current legislation is s 3(1)(h) of the Charities Act 2011 (UK).218 Greenpeace, above n 183, at [75].219 See for example Jackson, above n 184. Dal Pont notes that if popularity or broad social consensuswere required for showing that an advocacy-based purpose qualifies as charitable, the law woulddevolve into a "battle between pollsters" and to the extent charities provide relief to minorities, a"popularity straightjacket would undermine the core function of many existing charities": seeDal Pont, above n 183, at 24.original charitable principle of selflessness, become very important. An advocacygroup that addresses a controversial topic in a balanced way may well be charitable,even if it ultimately favours one side or the other. Honesty and respect in debate is notself-referential. In fact it can contribute to social cohesion and the empowerment ofindividuals while respecting also the communicator's right to their point of view. Itcan assist the community to navigate its way through difficult issues. And there iscertainly no shortage of those right now.[181] In this case, it does not much matter whether one describes Family First'spurpose as advocacy for the family or advocacy for a particular traditional orconservative view of the family. The key question is whether Family First's mannerand means of execution can be described as fair, balanced and respectful. As I havesaid, this will usually be a question of degree. For the reasons already traversed, I tooam of the view that the answer to that question is plainly no.[182] I agree that the appeal should be allowed.Solicitors:Crown Law Office, Wellington for AppellantRobert Brace, Solicitor, Waikanae for RespondentSue Barker Charities Law, Wellington for Intervener