FAMILY FIRST NEW ZEALAND v ATTORNEY-GENERAL [2020] NZCA 366

FAMILY FIRST NEW ZEALAND v ATTORNEY-GENERAL [2020] NZCA 366 [27 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA574/2018[2020] NZCA 366BETWEEN FAMILY FIRST NEW ZEALANDAppellantAND ATTORNEY-GENERALRespondentHearing: 22-23 October 2019 (further submissions 12 March 2020)Court: Clifford, Gilbert and Stevens JJCounsel: P D McKenzie QC and I C Bassett for AppellantP J Gunn and A P Lawson for RespondentJ J Batrouney QC and K G Davenport QC for Charity LawAssociation of Australia and New Zealand as IntervenorJudgment: 27 August 2020 at 9.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The decision of the Charities Registration Board dated 21 August 2017to remove Family First New Zealand from the Charities Register is set aside.C There is a declaration that Family First New Zealand qualifies forregistration under the Charities Act 2005.____________________________________________________________________REASONSClifford and Stevens JJ [1]Gilbert J (dissenting) [185]CLIFFORD AND STEVENS JJTable of ContentsIntroduction [1]BackgroundCharitable purposes [6]Family First's purposes [9]First deregistration decision [13]Appeal against first deregistration decision [19]Second deregistration decision [30]High Court judgment [37]This appealFamily First's submissions [41]The Attorney-General's submissions [50]CLAANZ's submissions [53]Additional evidence [56]Our analysisOverview [59]General principles [61]Presumptively charitable under the second head of theadvancement of education? [74]Family First's objects [86]Implementation and advancement of the objects [98]Charitable under the fourth head of public benefit? [123]Non-charitable and non-ancillary advocacy for specificpolitical/legislative responses? [156]Human rights law considerations [177]CLAANZ submissions [181]Result [182]Introduction[1] Family First New Zealand (Family First) appeals against a judgment ofSimon France J dismissing its appeal from a decision of the Charities RegistrationBoard (the Board) to deregister it as a charity.1 The High Court confirmed the Board'sdetermination that Family First did not qualify for registration. This was because1 Re Family First New Zealand [2018] NZHC 2273 [High Court judgment].Family First's core purpose was said to be to promote its conception of the "traditionalfamily" and that purpose could not be shown to be in the public benefit inthe charitable sense under the Charities Act 2005 (the Act). Further, Family First wasfound to have other non-charitable advocacy purposes which would disqualify it fromregistration.2[2] Family First says the High Court was wrong to conclude that what it perceivedto be Family First's support of traditional views on marriage and family issues meantits purposes were not charitable. It says that its objects are:(a) presumptively charitable, to the extent they involve education relatingto the role and importance of marriage and family life in New Zealandtoday; and(b) charitable to the extent they involve the purpose of promotion of, andadvocacy for, the public good that the institutions of the family andmarriage comprise in New Zealand society today.[3] To the extent that any of Family First's associated activities may benon-charitable — in that they promote specific legislative steps that cannot be said toconstitute a public good or benefit in the charitable sense, those activities are merelyancillary to its charitable purposes and do not disqualify it from registration as acharitable trust.[4] The Attorney-General endorses the High Court's approach.[5] The Charity Law Association of Australia and New Zealand (CLAANZ)intervenes with leave of the Court to address two issues of principle:(a) In determining whether a political advocacy organisation exists fora charitable purpose of public benefit, whether wider benefits flowingfrom the means and manner of its political advocacy, including fromthe fact of that advocacy itself, should be taken into account;2 At [74].(b) Whether the removal of a tax subsidy to a previously registeredcharitable organisation engaged in political advocacy could be viewedas an unreasonable limit on its right to freedom of expression.BackgroundCharitable purposes[6] To qualify for registration as a charity, an organisation must be established andmaintained exclusively for charitable purposes.3 "Charitable purpose" has no clear,set meaning. It is broadly defined in s 5(1) of the Act:5 Meaning of charitable purpose and effect of ancillarynon-charitable purpose(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.These four categories (relief of poverty, advancement of education or religion, or anyother matter beneficial to the community) are commonly referred to as the four"heads" of charity. Implicit within the concept is that of "selfless", for the other,activities.[7] A trust, society or institution with charitable purposes, but which also hasnon-charitable purposes and hence is not exclusively charitable, may not be registered.However, a non-charitable purpose that is merely ancillary to a charitable purpose isnot of itself disqualifying. Section 5(3) and (4) provide:(3) To avoid doubt, if the purposes of a trust, society, or an institutioninclude a non-charitable purpose (for example, advocacy) that ismerely ancillary to a charitable purpose of the trust, society, orinstitution, the presence of that non-charitable purpose does notprevent the trustees of the trust, the society, or the institution fromqualifying for registration as a charitable entity.(4) For the purposes of subsection (3), a non-charitable purpose isancillary to a charitable purpose of the trust, society, or institution ifthe non-charitable purpose is—3 Charities Act 2005, s 13(1)(b)(i).(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.[8] Section 18(3) of the Act directs the Chief Executive of the Department ofInternal Affairs to consider the activities of an entity, actual and proposed, whenconsidering its entitlement to registration upon receiving an application forregistration. Such consideration will similarly be relevant for ongoing registration.Family First's purposes[9] Family First was formed by a deed of trust dated 26 March 2006. Its objectsare set out in its trust deed as follows: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.[10] Family First encapsulates its views on the significance of family and marriagein two statements of principles which appear on its website: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 whānau 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 andpsychological 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 institution7. The laws that govern marriage should reflect the principles above4[11] Family First promotes those views, and seeks to generate public debate andsocial analysis to contribute to the deliberations of the community, throughthe development and dissemination of various forms of research on a wide range ofissues of general concern relating to families and marriage, such as family economics,sex education and excessive screen time. It also engages from time to time incommunity discussion and debate (including through the media) on what it sees asrelated, specific, legal issues. Since its establishment in 2006 these have includedissues such as divorce, prostitution, pornography, broadcasting standards andcensorship, availability of alcohol and tobacco, gambling, abortion, euthanasia,embryonic cell research and the "anti-smacking" legislation.[12] As seen in its statements of principles, Family First takes a relativelytraditional approach to the importance of families and marriage. It takes a similarapproach on the related more specific issues on which it also engages in publicdiscourse. Thus, and for example, it seeks to discourage divorce, is opposed tothe liberalisation of laws relating to prostitution and the availability of abortion, soughtan exemption for "light smacking" from the anti-smacking legislation and currentlyopposes the law changes which would or might follow "yes" votes in the forthcomingreferenda on cannabis and euthanasia.First deregistration decision[13] Family First was incorporated under the Charitable Trusts Act 1957 on6 April 2006 under the name Family First Lobby. It changed its name to Family FirstNew Zealand in November 2006 and was registered on the Charities Register witheffect from 21 March 2007.[14] The Board is responsible for ensuring that all entities on the Charities Registermeet the criteria for registration. On 15 April 2013, following an investigation,4 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".the Board resolved to deregister Family First as a charity.5 The Board describedFamily First's main purpose as being:6 to promote the view that the "natural family" (defined by the Trust asthe union of a man and a woman through marriage) is the fundamental socialunit, and should be supported as such to the exclusion of other family forms(described by the Trust as "incomplete or fabrications of the state").(Footnote omitted.)[15] On that basis, the Board determined Family First did not qualify for continuedregistration as a charity. The Board considered that Family First's main purpose ofpromoting its views about family was a non-charitable "political" purpose without anyself-evident public benefit. Central to that decision was the Board's assessment thatFamily First promoted a specific point of view about what is best for family and civilsociety. Referring to Family First's Principles on Family, its adaptation of the WorldCongress of Families' "The Natural Family: A Manifesto", the Board concluded thatthe Trust's "perspective on family can be fairly described as an opinion on what is bestfor families and civil society. Each of the propositions affirmed by the Trust [in thatadaptation] is a matter of opinion or value-judgment".7 Moreover, that perspectivewas one which was controversial in the relevant sense: that is, its benefit to the publicwas not self-evident as a matter of law.8 Similarly "controversial" were Family First'sviews on the various specific legislative issues it focussed on over time.[16] The Board was also not persuaded that Family First's promotion of its viewsabout family and marriage qualified, as Family First had claimed, as the advancementof religion or education.9[17] To the extent Family First had an independent purpose to procuregovernmental actions, that was a non-charitable political purpose that was notancillary to any charitable purpose.105 Family First New Zealand (CC42358) Charities Board Decision 2013-1, 15 April 2013[First deregistration decision].6 At [3].7 At [45].8 At [46].9 At [57] and [77].10 At [100].[18] The Board summarised those reasons as follows:11First, the Trust's main purpose is to promote points of view about family life,the promotion of which is a political purpose because the points of view donot have a public benefit that is self-evident as a matter of law. The Board'sview on the Trust's main purpose is [as quoted in [14] above].Secondly, the Board considers that the Trust's purpose to promote points ofview about family life is not a charitable purpose to advance religion oreducation, nor a purpose beneficial to the public within the fourth category ofcharity at general law. Thirdly, the Board considers that the Trust hasan independent purpose to procure governmental actions (includinglegislation, policies and governmental decisions) consonant with the Trust'spoint of view. This purpose to procure governmental actions is a politicalpurpose that is not charitable, and is not ancillary to any valid charitablepurpose of the Trust.Appeal against first deregistration decision[19] The Board's decision was made in accordance with this Court's judgment,Re Greenpeace of New Zealand Inc, which held that an entity established forcontentious political purposes could not be said to be established principally forcharitable purposes.12 Greenpeace was granted leave to appeal the correctness of thatdecision to the Supreme Court. Given the Board's identification of Family First'spolitical purpose as disentitling it to registration, Family First's appeal tothe High Court against the first deregistration decision was deferred until afterGreenpeace's appeal to the Supreme Court had been determined.[20] The Supreme Court allowed the Greenpeace appeal.13 Significantly, forpresent purposes, the Court held by a majority, contrary to earlier authority andthis Court's appealed judgment, that the Act does not create a general exclusion ofadvocacy from charitable purposes, even where it is more than an ancillary purpose.14Further, the majority held there is no standalone doctrine of exclusion of politicalpurposes.15 It held that a charitable purpose and a political purpose were not mutuallyexclusive. This was a departure from previous domestic and international case law11 At [2].12 Re Greenpeace of New Zealand Inc [2012] NZCA 533, [2013] 1 NZLR 339 at [60].13 Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169.14 At [57]–[58] per Elias CJ, McGrath and Glazebrook JJ.15 At [59], [72] and [114]–[115].which had consistently held that, if an entity had a main purpose that was political innature, it would automatically be denied charitable status.16 The majority concluded:[115] Section 5(3) of the Charities Act does not enact a political purposeexclusion, codifying the common law. It provides that non-charitablepurposes do not affect charitable status if no more than ancillary and includes"advocacy" as an example of such ancillary non-charitable purpose. It doesnot deal with the case where promotion of views is properly regarded ascharitable in itself. Such cases are likely to be unusual.[21] In reaching those conclusions the majority were unable to agree withthis Court's suggestion that advocacy of generally accepted views may be charitable,while advocacy of highly controversial views was not.17[22] The Supreme Court emphasised, however, that it is not sufficient forthe objects to be of benefit to the community. Rather, the benefit must also becharitable in the sense used by the common law.18 The majority consideredthe advancement of causes "will often, perhaps most often, be non-charitable" becauseit will not be "possible to say whether the views promoted are of benefit in the waythe law recognises as charitable".19[23] At the same time it said:[74] It may be accepted that the circumstances in which advocacy ofparticular views is shown to be charitable will not be common, but that doesnot justify a rule that all non-ancillary advocacy is properly characterised asnon-charitable. [76] Instead, assessment of whether advocacy or promotion of a cause orlaw reform 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.These principles are discussed further below in the course of consideringGreenpeace's purposes.16 For example, see Re Wilkinson [1941] NZLR 1065 (SC) at 1077; Knowles v Commissioner ofStamp Duties [1945] NZLR 522 (SC) at 528; and Molloy v Commissioner of Inland Revenue[1981] 1 NZLR 688 (CA) at 695, referring to Bowman v Secular Society Ltd [1917] AC 406 (HL)at 442.17 Re Greenpeace of New Zealand Inc, above n 13, at [75].18 At [113].19 At [73].[24] In allowing Family First's appeal to the High Court against the Board's firstderegistration decision, and referring the question of its entitlement to registrationback to the Board, Collins J, having noted the significance of the Board's conclusionthat Family First was engaged in political activity for its deregistration decision,observed:20However, the Charities Board proceeded on the basis that Family First'spolitical purposes could not be classified as a charitable purpose.This approach dominated and affected many features of the decision ofthe Charities Board, including its reasoning that Family First's purposes fellwithin the Charities Board's second category of political purpose, in part,because Family First's views were "controversial". [25] The Judge then concluded that the Board's fundamental proposition, thatFamily First's political objectives could never be charitable, could not be reconciledwith the approach taken by the majority of the Supreme Court in Greenpeace.The Board's decision was based, therefore, upon a fundamental legal proposition thathad subsequently been found to be incorrect.21[26] Likewise, the Board's characterisation of Family First's advocacy as"controversial" required reconsideration.22[27] Turning to the question of possible charitable purpose under the fourth head,benefit to the public, Collins J observed:[89] I am saying, however, that the analogical analysis which the CharitiesBoard must undertake should be informed by examining whetherFamily First's activities are objectively directed at promoting the moralimprovement of society. This exercise should not be conflated witha subjective assessment of the merits of Family First's views. Members ofthe Charities Board may personally disagree with the views of Family First,but at the same time recognise there is a legitimate analogy between its roleand those organisations that have been recognised as charities. Such anapproach would be consistent with the obligation on members ofthe Charities Board to act with honesty, integrity and in good faith.(Footnote omitted.)20 Re Family First New Zealand [2015] NZHC 1493 at [83].21 At [84].22 At [85].[28] The Judge also commented on Family First's submission that it hadthe charitable purpose of advancing education, and the Board's assessment, rejectingthat submission, that Family First "advanced its polemic points of view under the guiseof research and that it was not genuinely involved in the advancement of education".23As the Judge correctly summarised the position:[91] To be a charitable education activity, the entity must, in addition toconferring a public benefit, promote learning which may be undertakenthrough a variety of means such as training programmes, conferences or bycarrying out or disseminating research that improves knowledge abouta particular issue.(Footnote omitted.)[29] In that context, the Judge commented on one particular piece of research that,at the hearing before him, the Board had acknowledged was "a legitimate piece ofresearch":24 namely the report entitled "The Value of Family: Fiscal Benefits ofMarriage and Reducing Family Breakdown in New Zealand" commissioned byFamily First from the New Zealand Institute of Economic Research (NZIER).25The Judge said the Board would need to "carefully examine" that report and determinewhether it was sufficient to qualify Family First's activities as includingthe advancement of education for the public benefit.26 The Board was thereforedirected to reconsider the question of Family First's registration in light of this.Second deregistration decision[30] Following its successful appeal, Family First filed further submissions andprovided further information regarding its activities to assist the Board in itsreconsideration of the question of deregistration. Family First did not pursuethe proposition that it was a trust for religious purposes. Rather, Family First claimed(relying on the fourth head) its purposes were either analogous to purposes the courtshave previously accepted as being charitable — the promotion of moral and mentalimprovement — or, again and relying on the second head, involved the advancementof education.23 At [90].24 At [93].25 NZIER "The Value of Family" (Family First New Zealand, October 2008).26 Re Family First New Zealand, above n 20, at [94].[31] On 21 August 2017, the Board confirmed its earlier decision that Family Firstshould be deregistered.27 The Board accepted Family First's submission that an objectof promoting moral and mental improvement could be regarded as a charitable purposeunder the fourth head of charity.28 However, the Board found that Family First's mainactivity involved advocacy for the advancement of its "Family Policy Priorities",described on its website as follows:29a. "Promoting marriage and families" (which includes advocacy ona wide range of issues in relation to marriage, divorce, child abuse,the availability of alcohol, tobacco and gambling, taxation of families,aged care and sex education).b. "Promoting life" (which includes advocacy against abortion, tomaintain the status quo on euthanasia and against embryonic cellresearch).c. "Promoting community values and standards" (which includesadvocacy to change prostitution laws, reducing the availability ofpornography and for stricter broadcasting standards and censorship).[32] The Board found Family First advocates its Family Policy Priorities in variousways using a range of media. It publishes media releases, articles and other opinionssupporting its views on its website. It sends pamphlets to families and churches.It provides columns for the Christian Life Magazine, emails newsletters to supportersand hosts an online television channel. It also conducts opinion polls, commissionsreports, and makes submissions on legislation. In addition, Family First holds annualconferences and church leader events.30[33] Ultimately, the Board was not satisfied Family First's advocacy could beregarded as being for the benefit of the public:31Most of the advocacy of Family First concerns advocacy on issues where thereare two sides to an argument on a topical social issue, neither of which hasbeen determined to be for the benefit of the public.27 Family First New Zealand (CC10094) Charities Board Decision 2017-1, 21 August 2017 [Secondderegistration decision]. The Board followed a three-step process proposed by Ellis J in Re TheFoundation for Anti-Aging Research [2016] NZHC 2328, (2016) 23 PRNZ 726 at [88].28 Second deregistration decision, above n 27, at [17].29 At [25].30 At [26].31 At [33].[34] The Board then addressed whether Family First had a charitable purpose toadvance education. The Board considered an organisation advancing a cause throughthe dissemination of research promoting a particular point of view cannot claiman educational purpose.32 Rather than seeking to advance education through itsreports, the Board considered Family First sought to persuade readers anddecision-makers to its point of view.33 With one exception — the NZIER report —the reports relied on by Family First to substantiate this ground were categorised bythe Board as "propaganda or cause [advocacy] under the guise of research", adoptingthe description used by Hammond J in Re Collier.34 The Board considered thesereports lacked an independent and objective starting point in the analysis and merelysought to persuade the reader to a particular point of view consistent withFamily First's Policy Priorities.35[35] Whilst the NZIER report was capable of advancing education, the Board didnot accept Family First advanced education through that report. That was because inthe Board's assessment the media release accompanying the report did not presentthe results objectively and instead used them in a manner that advanced Family First'sviews.36[36] Family First appealed to the High Court against the second deregistrationdecision.High Court judgment[37] Simon France J observed that the NZIER report commissioned by Family Firstin 2008 confirmed the significant fiscal cost to society of family breakdown anddecreasing marriage rates. The Judge also noted the societal cost, seen in areas suchas the criminal justice sector, of children and young persons not being raised ina supportive environment. The Judge considered that if Family First's purposes were32 At [41].33 At [45].34 At [47], citing Re Collier [1998] 1 NZLR 81 (HC) at 91.35 At [52].36 At [50].solely to promote the role of the family, it would have a strong claim to charitablestatus.37[38] But, the Judge held, the evidence did not establish that the achievement ofFamily First's object of promoting the traditional family would be a benefit tothe community in the sense required by charity, particularly if it came at the expenseof other forms of family.38 With regard to the fourth head of charity submissionthe Judge stated:[65] I accept that some or many may agree with aspects of Family First'sposition, but just as controversy is not a block, nor is the fact that a significantnumber agree with its position a pathway to charitable status. The narrowissue in these advocacy cases is whether a body whose main or indeed solefunction is to promote a viewpoint is a charity. The advocacy cases wherecharitable status has been acknowledged are scarce, and seem increasinglylimited to purposes of almost universal acceptance. Here, it cannot be shownthat Family First's promotion of the traditional family unit, though no doubtsupported by a section of the community, if achieved would be a publicbenefit. If it is achieved at a cost to other family models, it could affirmativelybe said not to be in the public interest.[39] The Judge also considered that one of Family First's major purposes —to promote life by reducing access to abortion and opposing legislation enablingassisted death — was a further obstacle to its charitable status. He considered this wasa non-charitable purpose that disqualified Family First from achieving charitablestatus regardless of whether its main purpose could be said to be charitable.39The Judge relied on this Court's decision in Molloy v Commissioner of InlandRevenue,40 and its subsequent approval in the Supreme Court's judgment inGreenpeace,41 to support his conclusion that a purpose of reducing access to abortionand opposing assisted death legislation was not charitable in the required sense.42In Molloy, this Court had held the public good in restricting abortion was not soself-evident as a matter of law that such charitable prerequisite could be achieved.43The Judge considered the same analysis applied to other law changes sought by37 High Court judgment, above n 1, at [57].38 At [64].39 At [68].40 Molloy v Commissioner of Inland Revenue, above n 16.41 Re Greenpeace of New Zealand Inc, above n 13, at [73].42 High Court judgment, above n 1, at [66].43 Molloy v Commissioner of Inland Revenue, above n 16, at 697.Family First, including repeal of laws relating to anti-smacking, prostitution reformand censorship.44[40] Finally, the Judge agreed with the Board's assessment that, even if there werean educative aspect to Family First's activities, this was not its only purpose. Its otherpurposes and activities could not be regarded as ancillary to any educative purpose.45This appealFamily First's submissions[41] Mr McKenzie QC, for Family First, addressing the fourth head of charity point,submits the Judge misinterpreted the Supreme Court's judgment in Greenpeace.He says there is a presumption of public benefit in each of the first three heads ofcharity in s 5(1) of the Act unless the contrary is shown. The need to demonstratepublic benefit is only required under the fourth head of charity, where the purpose isanalogous to existing cases within the spirit and intendment of the Statute ofCharitable Uses 1601 (Eng) 43 Eliz I c 4 (the Statute of Elizabeth). It is thereforesufficient for Family First to show it has a purpose of advancing education or a purposewithin the fourth head of charity which is also for the public benefit, provided that anyother purposes are ancillary to these charitable purposes.[42] Mr McKenzie submits the Judge erred by looking beyond Family First'sobjects as set out in its trust deed and having regard to policies published on itswebsite. Mr McKenzie relies on Ellis J's observations in Re The Foundation forAnti-Aging Research that an entity's activities will only be relevant where itsconstituent documents do not disclose its purpose or where there is evidence ofactivities that displace or bely its stated charitable purpose.46 In any event, he saysFamily First's activities directed towards promoting life are closely related to thewelfare of the family and should be understood as being merely ancillary toits charitable purpose of promoting the family. Similarly, Mr McKenzie arguesFamily First's opposition to anti-smacking laws and prostitution and its views on44 High Court judgment, above n 1, at [68].45 At [70]–[73].46 Re The Foundation for Anti-Aging Research, above n 27, at [85].censorship are also ancillary to its primary object of promoting the family. He saysnone of these are primary objects.[43] Mr McKenzie contends the Board was required to consider whether the causesor viewpoints promoted by Family First are of public benefit and was in error indeclining to embark on this assessment on the basis that Family First seeks to promotea particular viewpoint. He relies particularly on the following passage fromLord Wright's judgment in National Anti-Vivisection Society v Inland RevenueCommissioners:47Later in his judgment, [the Judge below] said that the intention is to benefitthe community: whether if they achieved their object, the community would,in fact, be benefitted is a question on which the court is not required to expressan opinion. Whatever else is clear, it is, I think, clear that the question he isproposing involves the balancing of utilities. I cannot understand howthe judge could avoid deciding the very question necessary for his decision,viz., whether the society satisfies the fourth head, as being beneficial tothe community. That I think is the test he proposes. He questions ifthe infliction of pain is necessarily cruelty. It may be justifiable he concedes,but that, he thinks, is a question of morals on which men's minds may differ.[44] Mr McKenzie refers to the evidence provided to the Board regardingFamily First's current activities. He contends these activities serve to strengthenfamily life, encourage stability and promote positive values in society, arguing allpurposes are of benefit to the community and should be regarded as charitable byanalogy to the mental and moral improvement cases. Mr McKenzie summarises theseactivities as follows:(a) Advocacy to relevant authorities on strengthening marriage,parenting, child youth and family services, child abuse, familyeconomics, aged care and sex education.(b) Promoting life, including advocacy against abortion, euthanasia andembryonic cell research.47 National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31 (HL) at 43(footnote omitted).(c) Promoting community values, including advocacy in the areas ofprostitution, pornography and censorship.(d) Commissioning research papers on euthanasia and the impact ofanti-smacking law changes.[45] Mr Bassett, junior counsel for Family First, provided supplementarysubmissions on two topics. First, he addressed the Judge's concern that the promotionof the traditional family is discriminatory. Secondly, he developed the argumentpursued before the Board and in the High Court that one of Family First's primaryobjects is the advancement of education, an established charitable purpose.[46] Mr Bassett submits the Judge was wrong to regard Family First's promotionof the traditional family unit as discriminatory and contrary to human rights law. Hesays the Human Rights Act 1993 is not engaged in the present context because FamilyFirst is not supplying goods and services, nor is it providing employment. Further, s19 of the New Zealand Bill of Rights Act 1990 (NZBORA) is not relevant becauseFamily First is neither performing any public function nor discriminating inthe relevant sense. He argues there is nothing discriminatory about Family First'sobjects as set out in its trust deed. In any case its support of the traditional family isnot discriminatory but rather an entirely reasonable point of view which it is entitledto express in a free and democratic society, a right protected by s 14 of NZBORA.[47] Mr Bassett submits it is self-evident that supporting families, includingthe traditional family, is a charitable purpose of public benefit. This is reinforced byvarious international treaties, declarations and other instruments, including thosereferred to by the Judge, which affirm the fundamental importance accorded tofamilies in society and the responsibility of states to afford them protection andassistance.48 Mr Bassett contends that Family First's objects in its trust deed are ofbenefit to all families, not just the traditional family. For example, he says all familiesmay need to grapple with such issues as family economics, aged care, gambling,excessive screen time, alcohol abuse, sex education and pornography. Mr Bassettcontends that Family First's promotion of debate on smacking, abortion, censorship48 High Court judgment, above n 1, at [53]–[55].and prostitution should be characterised as ancillary, rather than a main purpose, andhence not disqualifying in terms of s 5(3) of the Act.[48] Mr Bassett submits the Judge was wrong to find that Family First's objects didnot include the charitable purpose of advancement of education. He saysthe trust deed objects include an educational purpose and public benefit can thereforebe presumed. Mr Bassett argues that it is not necessary or desirable to "micro-analyse"the research and each viewpoint advocated in assessing the wider public benefit.Any such approach would be inherently subjective, unworkable and unjustifiable.He suggests the better approach is to accept that public benefit flows fromthe generation of public debate and contribution to public discourse.[49] In summary, while Mr Bassett acknowledges that the exercise of the right tofreedom of expression may not of itself qualify as being for the public benefit,Family First's objects of supporting families and the advancement of education bothqualify as charitable objects and its activities contribute to informed public discourseand are for the wider public benefit.The Attorney-General's submissions[50] Mr Gunn and Ms Lawson, for the Attorney-General support the High Courtjudgment. Mr Gunn argues that Family First's contention that its activities benefit allforms of families cannot be sustained on the evidence. He submits that Family Firsthas not established that its principal purpose, advocacy on behalf of the traditionalfamily, is of public benefit or is sufficiently analogous to any purpose previouslyaccepted as charitable.[51] Mr Gunn supports the Judge's conclusion that law changes favouringthe traditional family, one of Family First's goals, would be contrary to human rightslaw which prohibits discrimination on such bases unless shown to be a reasonablelimit. Accordingly, he argues the Judge was right to identify this as an obstacle tocharitable status.[52] Mr Gunn also supports the Judge's conclusion that Family First's activities donot constitute an educational purpose, not because some of its research is not useful orof educational benefit, but because it is used to promote the views of Family Firstrather than to educate in the way the law has traditionally viewed as charitable.CLAANZ's submissions[53] Ms Batrouney QC and Ms Davenport QC for CLAANZ submit that, where anorganisation's purpose does not entail a service provision, the public benefit test willdepend on the existence of wider benefits to the community. If the political advocacyis in furtherance of some unquestionably beneficial law or policy change, then suchwider benefits might be demonstrated directly from the end advocated. However,incidental wider benefits might be demonstrated in light of the means and manner inwhich the political advocacy is carried out. CLAANZ submits that the possibility ofincidental wider benefits arising from the fact of political advocacy itself should beconsidered, irrespective of the end advocated. CLAANZ relies on the followingpassage from the majority judgment in the High Court of Australia's decision inAid/Watch Inc v Commissioner of Taxation:49Rather, it is the operation of these constitutional processes which contributesto the public welfare. A court administering a charitable trust for that purposeis not called upon to adjudicate the merits of any particular course oflegislative or executive action or inaction which is the subject of advocacy ordisputation within those processes.[54] While acknowledging that New Zealand's constitutional arrangements are notthe same as those in Australia, CLAANZ submits it is beyond argument that a cultureof free political expression is a significant public benefit given New Zealand's politicaland legal commitments. CLAANZ points to commentary by notable politicalphilosophers and constitutional scholars who argue powerfully for the recognition ofthe public benefit of a culture of free political expression in any liberal and democraticsystem of government.[55] CLAANZ does not contend there is any positive obligation to preservefreedom of expression through tax subsidies. However, it argues that removal ofa subsidy to a previously registered charitable entity could result in an unreasonablelimitation on that party's right to freedom of expression. CLAANZ suggests this49 Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42, (2010) 241 CLR 539 at [45] perFrench CJ, Gummow, Hayne, Crennan and Bell JJ.would be the case if an organisation would be unable to carry out its functions andengage in its political purpose if the benefit of tax credits available through charitableregistration were withdrawn.Additional evidence[56] As Mr Gunn acknowledged, the appeal proceeds by way of rehearing.50This Court must therefore come to its own view on the merits, taking into account therelevant facts, any new evidence admitted, and the applicable law.51 At the hearing ofthis appeal agreement was reached as to certain additional material that was to beprovided to us. That agreement was recorded in a minute of the Court of29 October 2019, a copy of which appears as Appendix One to this judgment.52We note that we duly received the requested materials from the Attorney-General andFamily First, including an affidavit from Mr McCoskrie (National Director ofFamily First) of 13 November 2019, and have relied on them in preparing thisjudgment. They are, therefore, properly part of the record.[57] In a second minute, of 17 December 2019, we requested further materials fromFamily First (as recorded at [3] of that minute), relating to what Family First hadsuggested were advocacy activities of other charitable trusts which, in distinction toits own position, had been accepted as charitable.53 We subsequently receivedextensive submissions from counsel and an extended affidavit from Mr McCoskrierelating to those matters. We also received submissions from the Attorney-General.Whilst the Attorney-General did not oppose the introduction of the material, hesubmitted it did not assist the Court to determine the issues before us. Family Firstthen filed submissions in reply. As matters have transpired, we agree withthe Attorney-General that the materials were of no material assistance to us. Whilethey too are part of the record, we have however not relied upon them.50 High Court Rules 2016, r 20.18.51 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].52 Family First New Zealand v Attorney-General CA574/2018, 29 October 2019 (Minute ofthe Court).53 Family First New Zealand v Attorney-General CA574/2018, 17 December 2019 (Minute ofthe Court).[58] We note finally that we received a further, unsolicited, memorandum ofcounsel, accompanied by another affidavit from Mr McCoskrie, relating to advocacyactivities in connection with the cannabis referendum which will take placecontemporaneously with this year's general election. The Attorney-General didoppose the receipt of those documents. Whilst we did not reply formally to thosefurther materials, we record that we have not relied on nor referred to them in thisjudgment. To take a formal position, as is appropriate for the purposes of clarity, wedid not accept those further, June, materials. Accordingly they are not part ofthe record.Our analysisOverview[59] This appeal raises three broad questions:(a) Was the High Court wrong to conclude that Family First is not a trustfor, presumptively charitable, educational purposes?(b) Was the High Court wrong to conclude that Family First was nota trust for a fourth head charitable purpose, namely that of promotingfamilies and marriage as of benefit and good to society?(c) If the answer to either of those questions is yes, does Family First havenon-charitable purposes of more than an ancillary nature which,notwithstanding, disqualify it from registration as a charity?[60] We structure our analysis accordingly. But first, and by way of context, wesummarise our understanding of the well-established general principles and their morerecent development in New Zealand through the enactment of the Act and cases whichhave followed, and in particular that of Greenpeace in the Supreme Court.General principles[61] The starting point is the Statute of Elizabeth, enacted to correct abuses inthe administration of charitable trusts (including the misuse, loss or neglect of charityproperty), not with any intent to clarify or define the meaning of charitable purpose.54The preamble listed miscellaneous examples of charitable objects which reflecteda desire to encourage private philanthropy to relieve the burden that would otherwisefall on parish ratepayers.55 The preamble read: some for relief of aged, impotent, and poor people, some for maintenanceof sick and maimed soldiers and mariners; schools of learning, free schools,and scholars in universities; some for repair of bridges, ports, havens,causeways, churches, sea banks, and high ways; some for education andpreferment of orphans; some for or towards relief, stock or maintenance forhouses of correction; some for marriages of poor maids; somefor supportation, aid and help of young tradesmen, handicrafts men andpersons decayed and others for relief or redemption of prisoners or captives,and for aid or ease of any poor inhabitants concerning payments of fifteens,setting out of soldiers, and other taxes.[62] These examples were not intended to comprise an exhaustive or fixed list.56Over the 400 years since the Statute of Elizabeth, purposes regarded as charitable havecontinued to develop as the courts have considered whether particular purposes fallwithin the "spirit and intendment" of the preamble by analogy with existing cases.This incremental common law process of reasoning has allowed the law of charity torespond to changing social values and needs. In this way, new charitable objects havebeen recognised by the courts over time, while others have become obsolete and fallenaway.57[63] In 1891 Lord Macnaghten identified four classes of charitable purposes in hisseminal judgment in Commissioners for Special Purposes of the Income Tax vPemsel:58"Charity" in its legal sense comprises four principal divisions: trusts forthe relief of poverty; trusts for the advancement of education; trusts forthe advancement of religion; and trusts for other purposes beneficial tothe community, not falling under any of the preceding heads.54 See Gareth Jones History of the Law of Charity (Cambridge University Press, Cambridge, 1969)at ch 3.55 Chichester Diocesan Fund and Board of Finance (Inc) v Simpson [1944] AC 341 (HL) at 354 perLord Wright.56 Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue[1999] 1 SCR 10 at [35].57 National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47, at 69–70 perLord Simonds.58 Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL) at 583.[64] These broad classifications have endured and form the basis of the fourcategories now found in s 5 of the Act — "the relief of poverty, the advancement ofeducation or religion, or any other matter beneficial to the community".[65] In Barby v Perpetual Trustee Co (Ltd), Dixon J noted the wide breadth ofobjects that could conceivably come within the fourth category:59In this now familiar classification of charitable gifts, the fourth class, as hasoften been pointed out, does not attempt to define a charitable object. It is nomore than a final class into which various objects fall that are not comprisedin the first three classes, but are nevertheless charitable. It has been foundimpossible to give an exhaustive definition of what amounts to a charitablepurpose, but the authorities indicate the attributes that are to be looked for.The gift must proceed from altruistic motives or from benevolent orphilanthropic motives. It must be directed to purposes that are for the benefitof the community or a considerable section or class of the community.The purposes must tend to the improvement of society from some point ofview which may reasonably be adopted by the donor. The manner in whichthis tendency may be manifested is not defined by any closed category. It iscapable of great, if not infinite, variation. It may be by the relief of misfortune;by raising moral standards or outlook ; by arousing intellectual or aestheticinterests ; by general or special education ; by promoting religion; or byaiming at some betterment of the community. The purposes must be lawfuland must be consonant with the received notions of morality and propriety.[66] The word "charitable" in this context means charitable in the legal sense, notaccording to its ordinary meaning. To qualify under the fourth head requires bothpublic benefit and a charitable object in the same sense as the other purposes recitedin the preamble to the Statute of Elizabeth.60 There are two aspects to the publicbenefit test. The purposes must be such as to confer a benefit on the public or a sectionof the public (the benefit component) and the class of persons eligible to benefit mustconstitute the public or a sufficient section of the public (the public component).61In relation to cases under the fourth head, objects of public benefit are notautomatically presumed to be charitable. The benefit must be charitable in the senseof coming within the spirit and intendment of the preamble, to be determined byanalogy to the decided cases.62 It is accepted that the common law should develop59 Barby v Perpetual Trustee Co (Ltd) (1937) 58 CLR 316 at 324.60 Re Greenpeace of New Zealand Inc, above n 13, at [29].61 Travis Trust v Charities Commission (2009) 24 NZTC 23,273 (HC) at [54]; and Plumbers,Gasfitters and Drainlayers Board v Charities Registration Board [2013] NZHC 1986, [2014] 2NZLR 489 at [20].62 National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47, at 41–42 perLord Wright.cautiously, given the significant tax implications of materially widening the qualifyingclass of cases.63 While public benefit may be assumed (unless the contrary is proven)where the object in question falls within any of the first three heads of charity, this isnot so for the fourth category. Unless the public benefit is self-evident, it must beproved by evidence.64[67] As the Supreme Court acknowledged in Greenpeace, plainly Parliament didnot intend to displace the common law meaning of "charitable purpose" when enactingthe Act.65 Section 5 states "charitable purpose includes every charitable purpose"(emphasis added). The fourth category — "any other matter beneficial tothe community" — reinforces Parliament's intention to leave the question of whatqualifies as a charitable purpose to continue to be worked out over time employingthe common law method and adapting to changing social needs and circumstances.The select committee which considered the Charities Bill endorsed the Pemselclassifications in the definition of charitable purpose, observing that "amending thisdefinition would be interpreted by the Courts as an attempt to widen or narrowthe scope of charitable purposes, or change the law in this area, which was notthe intent of the bill".66[68] The courts continue the process of recognising analogously charitablepurposes, especially under the fourth, public benefit, head.67[69] Since the passage of the Act, the following purposes have been recognised asbeing charitable:(a) Providing mortgage lending on terms according with financialprinciples derived from the Bible (under the third, religious, head);6863 D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342 (HC) at 348. See alsoRe Greenpeace of New Zealand Inc, above n 13, at [30].64 National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47, at 42 perLord Wright; and D V Bryant Trust Board v Hamilton City Council, above n 63, at 350.65 Re Greenpeace of New Zealand Inc, above n 13, at [16].66 Charities Bill 2004 (108–2) (select committee report) at 3.67 For example in Re Tennant [1996] 2 NZLR 633 (HC) the High Court recognised as charitablethe provision — pursuant to a 1920s trust — of a creamery to assist a small rural communitybecome economically viable.68 Liberty Trust v Charities Commission [2011] 3 NZLR 68 (HC).(b) Funding and disseminating research into cryonics (under the second,educational, head);69(c) Establishing and monitoring competency standards applicable toplumbers, gasfitters and similar trades (under the fourth, public benefit,head);70 and(d) Campaigning for the protection of the environment, includingavoiding climate change, over-fishing and polluted waterways (underthe second and fourth heads).71[70] Section 3(1) of the Charities Act 2011 (UK) now provides the following list ofcharitable purposes:(a) the prevention or relief of poverty;(b) the advancement of education;(c) the advancement of religion;(d) the advancement of health or the saving of lives;(e) the advancement of citizenship or community development;(f) the advancement of the arts, culture, heritage or science;(g) the advancement of amateur sport;(h) the advancement of human rights, conflict resolution or reconciliationor the promotion of religious or racial harmony or equality anddiversity;(i) the advancement of environmental protection or improvement;(j) the relief of those in need because of youth, age, ill-health, disability,financial hardship or other disadvantage;(k) the advancement of animal welfare;(l) the promotion of the efficiency of the armed forces of the Crown orof the efficiency of the police, fire and rescue services or ambulanceservices;(m) any other purposes—(i) that are not within paragraphs (a) to (l) but are recognised ascharitable purposes by virtue of section 5 (recreational andsimilar trusts, etc.) or under the old law,(ii) that may reasonably be regarded as analogous to, or withinthe spirit of, any purposes falling within any of paragraphs (a)to (l) or sub-paragraph (i), or69 Re The Foundation for Anti-Aging Research, above n 27.70 Plumbers, Gasfitters and Drainlayers Board v Charities Registration Board, above n 61.71 Greenpeace of New Zealand v Charities Registration Board [2020] NZHC 1999.(iii) that may reasonably be regarded as analogous to, or withinthe spirit of, any purposes which have been recognised, underthe law relating to charities in England and Wales, as fallingwithin sub-paragraph (ii) or this sub-paragraph.[71] It would appear to be accepted that that codification generally reflectedthe position the common law had reached by that point in time in the United Kingdom.That said, the effect of the wording of s 3(1)(m) remains to be seen.72[72] In Greenpeace, the Supreme Court commented on the development over timeof the concept of a charity in the following terms:73[71] Just as promotion of the abolition of slavery has been regarded ascharitable, today advocacy for such ends as human rights or protection ofthe environment and promotion of amenities that make communities pleasantmay have come to be regarded as charitable purposes in themselves,depending on the nature of the advocacy, even if not ancillary to more tangiblecharity. That result was looked to as one that might well come about inrelation to protection of the environment by Somers J in Molloy. In the presentcase the Board has accepted that Greenpeace's object to "promotethe protection and preservation of nature and the environment" is charitable.Protection of the environment may require broad-based support and effort,including through the participatory processes set up by legislation, to enablethe public interest to be assessed. In the same way, the promotion of humanrights (a purpose of the New Zealand Bill of Rights Act 1990, as its long titleindicates) may depend on similar broad-based support so that advocacy,including through participation in political and legal processes, may well becharitable.[73] As we discuss later, and as recognised by Simon France J in the High Court,the Universal Declaration of Human Rights, and other similar instruments, affirma right to family life.74 That provides considerable support for the proposition thatFamily First's support of, education about, and advocacy for, the family and its relatedinstitution of marriage may, other things being equal, be charitable.72 See, for example, the commentary in William Henderson and Jonathan Fowles Tudor on Charities(10th ed, Sweet and Maxwell, London, 2015) at [1-008].73 Re Greenpeace of New Zealand Inc, above n 13 (footnotes omitted).74 Universal Declaration of Human Rights GA Res 217A (1948), art 16.Presumptively charitable under the second head of the advancement ofeducation?[74] Because Family First contends its objects fall within the second head of charity,advancement of education by the promotion and dissemination of research, we nowdescribe the applicable principles for this category.[75] There is no doubt the courts have come to accept advancement of education ascomprising a broad category extending beyond formal teaching to include research.The weight of modern authority allows for the commission and dissemination ofbona fide research as a form of educational charity. That is, direct instruction, coursesof learning or similarly tangible educational good works are not required.[76] The position has not always been so. For example, Mr Gunn refers to Re Shawfor the proposition that if the purpose is merely to increase the stock of knowledge thatis not itself a charitable purpose unless combined with teaching or education.75In Shaw, the testator left the residue of his estate on trust to ascertain how much timeand money could be saved by adding 14 letters to the English alphabet. He sawresearch being undertaken as to the benefits of additional characters and provided foradvertisements explaining the expanded alphabet to be published in newspapersthroughout the anglophone world. In finding this purpose was not charitable underthe second head, Harman J remarked:76The research and propaganda enjoined by the testator seem to me merely totend to the increase of public knowledge in a certain respect, namely,the saving of time and money by the use of the proposed alphabet. There isno element of teaching or education combined with this, nor doesthe propaganda element in the trusts tend to more than to persuade the publicthat the adoption of the new script would be "a good thing," and that, in myview, is not education.[77] This rather strict or narrow approach to research as a form of charity can betraced to 19th-century cases such as Whicker v Hume which distinguished "'learning'in the sense of imparting knowledge by instruction or teaching", which waseducational and charitable,77 from "the promotion of abstract learning", which was75 Re Shaw [1957] 1 WLR 729 (Ch).76 At 738.77 Whicker v Hume (1858) 7 HLC 124 at 154, 11 ER 50 (HL) at 62.not.78 Thus, the commission and limited dissemination of research, standing alone,generally amounted to "merely the increase of knowledge" and fell short of what wasrequired for charity.79[78] A similarly confined definition of "education" was adopted by Iacobucci J inVancouver Society of Immigrant and Visible Minority Women v Minister of NationalRevenue, in comments subsequently endorsed by Ronald Young J in Re DracoFoundation:80To my mind, the threshold criterion for an educational activity must be somelegitimate, targeted attempt at educating others, whether through formal orinformal instruction, training, plans of self-study, or otherwise.Simply providing an opportunity for people to educate themselves, such as bymaking available materials with which this might be accomplished but neednot be, is not enough. Neither is "educating" people about a particular pointof view in a manner that might more aptly be described as persuasion orindoctrination. On the other hand, formal or traditional classroom instructionshould not be a prerequisite, either. The point to be emphasized is that, inappropriate circumstances, an informal workshop or seminar on a certainpractical topic or skill can be just as informative and educational as a courseof classroom instruction in a traditional academic subject. The law ought toaccommodate any legitimate form of education.[79] On the other hand, Harman J's comments in Re Shaw were subsequentlyqualified by Wilberforce J in a widely-cited passage of Re Hopkins' Will Trusts:81[Whicker v Hume] certainly seems to place some limits upon the extent towhich a gift for research may be regarded as charitable. I should beunwilling to treat [Whicker] as meaning that the promotion of academicresearch is not a charitable purpose unless the researcher were engaged inteaching or education in the conventional meaning[80] Wilberforce J was considering whether a gift to the Francis Bacon Society Incto be earmarked and applied towards finding the supposed "Bacon–Shakespearemanuscripts" was charitable. The Judge found the bequest was within the law'sconception of charitable purpose either as being for the advancement of education or78 Re Macduff [1896] 2 Ch 451 (CA) at 473.79 Re Shaw, above n 75, at 737.80 Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue,above n 56, at [171]; partially quoted in Re Draco Foundation (NZ) Charitable Trust (2011) 25NZTC 20-032 (HC) at [75].81 Re Hopkins' Will Trusts [1965] Ch 669 (Ch) at 680.as being for other purposes beneficial to the community within the classification inPemsel — it was a gift for improving the country's literary heritage.82The observations of Wilberforce J describing the breadth of this category ofadvancement of education are instructive:83 the word "education" as used by Harman J in In Re Shaw must be used ina wide sense, certainly extending beyond teaching, and that the requirement isthat, in order to be charitable, research must either be of educational value tothe researcher or must be so directed as to lead to something which will passinto the store of educational material, or so as to improve the sum ofcommunicable knowledge in an area which education may cover [81] The Law and Practice Relating to Charities refers to the oral judgment ofSlade J in Re Besterman's Will Trusts for the following useful summary:84A trust for research will ordinarily qualify as a charitable trust if, but only if(a) the subject-matter of the proposed research is a useful subject ofstudy; and(b) it is contemplated that knowledge acquired as a result of the researchwill be disseminated to others; and(c) the trust is for the benefit of the public, or a sufficiently importantsection of the public.[82] The above approach to advancement of education was applied inthe High Court by Hammond J in Re Collier, although an additional requirement ofthe work meeting a minimum standard was included.85 A succinct and helpfuldescription of this second head of charity which we endorse is contained in Law ofCharity as follows:86Overall, the advancement of education may be taken to meanthe "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.82 At 682.83 At 680 (footnotes omitted).84 Re Besterman's Will Trusts, noted "Bequest of £300,000 to library 'a valid trust'" The Times(London, 22 January 1980) at 5; quoted in Hubert Picarda The Law and Practice Relating toCharities (4th ed, Bloomsbury Professional, Haywards Heath, 2010) at 66–67. See alsoMcGovern v Attorney-General [1982] Ch 321 (Ch) at 352–35385 Re Collier, above n 34, at 91–92;. referring to Re Elmore [1968] VR 390 (VSC) and Re Pinion[1965] 1 Ch 85 (Ch and CA).86 Juliet Chevalier-Watts Law of Charity (2nd ed, Thomson Reuters, Wellington, 2020) at 141(footnotes omitted).It extends to all branches of human knowledge and its dissemination".This reflects the notion that "education", and its advancement is a broadconcept.[83] It follows that the advancement of education head should be interpreted"very widely".87 The activities or purposes included will extend to those providingfor "the improvement of a useful branch of human knowledge and its publicdissemination".88[84] This Court in Latimer v Commissioner of Inland Revenue accepted thatresearch may "fulfil an educational role".89 The research in question was historical innature and had an assistance purpose in providing the Waitangi Tribunal withadditional material which would help it to produce more informed recommendations.90Accordingly we accept that useful and publicly disseminated research may constitutea possible form of educational charity, notwithstanding the absence of tangible goodworks in the nature of teaching or instruction.[85] Finally, we record the settled law that under the first three heads of charity,public benefit is presumed unless the contrary is proven.91Family First's objects[86] Whether or not an organisation is entitled to charitable status will generallydepend on an examination of its purposes expressed in its constitutive document.The objects should be construed as a whole in the context of the relevant background.92Because the organisation must be established and maintained exclusively forcharitable purposes, this requires identification of all the main objects and any that aremerely ancillary to the main charitable objects. It is important to distinguish betweenthe purposes or objects and the activities or means by which they are sought to beachieved or advanced. The purposes of an organisation may in some circumstances87 Re South Place Ethical Society [1980] 1 WLR 1565 (Ch) at 1576.88 Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972]Ch 73 (CA) at 102.89 Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA) at [41].90 At [40].91 Re Greenpeace of New Zealand Inc, above n 13, at [27]; and National Anti-Vivisection Society vInland Revenue Commissioners, above n 47, at 42.92 GE Dal Pont Law of Charity (2nd ed, LexisNexis Butterworths, Chatswood, NSW, 2017) at[13.17]–[13.18].be inferred from its activities. This point was discussed by Ellis J inRe The Foundation for Anti-Aging Research, where she observed "an entity'sactivities were regarded as relevant only to the extent that the entity's constituentdocuments were unclear as to its purpose or where there was evidence of activities byan entity that displaced or belied its stated charitable purpose".93[87] Mr McKenzie was critical of the Judge for having placed too much reliance onFamily First's activities to determine its purposes, to the virtual exclusion ofthe objects as expressed in the trust deed. We accept it is important to distinguishbetween activities and purposes. Charitable status depends principally on purposes,not activities. In principle, this can be seen as accepting that the "bounds" of a trustare determined by the settlor. If the trustees of a charitable trust act outside itscharitable purposes, they may in breach of their duties. But that should not necessarilyinvolve the settlor's charitable purpose and gift failing.[88] Traditionally, this meant the courts were reluctant to determine charitablestatus other than by reference to a trust's stated purposes. The Law and PracticeRelating to Charities comments on this issue in the following way:94A question which arises with increased frequency is whether the court andthe Commissioners are entitled to interpret declared purposes by reference toproposed or supposed activities of the organisation claiming charitable status.The orthodox view, reflecting the extrinsic evidence rule, is that, as a rule, ifstated purposes are clearly charitable that is the end of the matter: in sucha case an activities test is not in order. That was the view enunciated bythe Charity Commissioners in 1966, who added that it would be otherwise ifthe governing documents are obscurely drafted. But in recent years there hasbeen a shift in their approach and now when considering whether the purposesof the organisation are charitable in law they consider themselves asnecessarily involved in looking at both its objects and its activities.[89] The position is similar in New Zealand. As Elias CJ (for the majority) notedin Greenpeace, the "purposes of an entity may be expressed in its statement of objectsor may be inferred from the activities it undertakes, as s 18(3) of the Charities Act now93 Re The Foundation for Anti-Aging Research, above n 27, at [85]; referring to Institution ofProfessional Engineers New Zealand Inc v Commissioner of Inland Revenue [1992] 1 NZLR 570(HC) at 572.94 Picarda, above n 84, at 27 (footnotes omitted).makes clear".95 We begin by referring to the objects in Family First's trust deed, setout in full at [9] above.[90] First, there is a common thread of advancement of education and researchrunning through the first four objects — to "promote and advance research and policy"(object A), to "educate the public" (object B), to "participate in social analysis anddebate" and to "network with other like-minded groups and academics" (object C),and to "produce and publish relevant and stimulating material" (object D).While object B is expressed as being to "educate", the target group ("the public") andthe topic ("the institutional, legal and moral framework that makes a just anddemocratic society possible") illustrate the breadth of the intended dissemination ofany research output. This is reinforced in object E which illustrates the purpose ofgiving families a voice on "issues relating to families". The scope of the disseminationof research and discussion papers on such matters may also extend to doing so throughthe media.[91] Second, the objects have a central theme which is expressed in the first object— of giving support to "marriage and family" — the underlying premise of which isthat marriage and family are the foundation of a strong and enduring society. Four ofthe six objects (objects A, C, D and E) refer specifically to "the family", "family" or"families" and specify the various means by which Family First aims to supportfamilies. The only other specific object, of potential relevance to the second head ofcharity (albeit wider than just marriage and families), is "[t]o educate the public onthe institutional, legal and moral framework that makes a just and democratic societypossible" (object B). The final object (object F) is a general provision authorisingFamily First to carry out such other charitable purposes within New Zealand as it maydetermine.[92] In summary, objects A to D, and particularly A and B, on their face promotethe advancement of education: that is, education by facilitating research on, and publicunderstanding of, the importance of the roles of marriage and the family in our society.Properly construed the objects seek to improve public awareness of the notion of95 Re Greenpeace of New Zealand Inc, above n 13, at [14] (footnote omitted).family and enhance the quality of societal and public discourse on that issue. The factthere may be a political element to the promulgation and public dissemination ofthe research cannot be said to negative its utility. On the contrary, asPaul Rishworth QC has observed: "Our political systems depend upon ourdeliberating as a community. Our understanding of the world comes by seekinginformation and transmitting it to others."96[93] Lord Simonds said in National Anti-Vivisection Society v Inland RevenueCommissioners if a purpose appears broadly to fall within the familiar categories ofcharity, "the court will assume it to be for the benefit of the community and, therefore,charitable, unless the contrary is shown".97 Importantly for present purposes he added:"the court will not be astute in such a case to defeat on doubtful evidence the avowedbenevolent intention of a donor".98 Here of course the intent is that of the settlors ofthe Family First trust deed.[94] Our review of the second deregistration of the Board, summarised at [30]–[35]above, suggests very little attention was paid to the meaning and interpretation ofthe Family First objects as expressed in the trust deed. Rather than focus on the precisenature and scope of the objects (and start its analysis by interpreting the trust deed),the decision spends considerable time assessing the detail of a range of Family Firstreports placed before the Board.99 The High Court judgment likewise, perhapsbecause that was the way the appeal was run by counsel, touched only briefly onthe advancement of education category.100 Simon France J stated he agreed withthe conclusion of the Board, "although not with all of its reasoning".101[95] In the course of his analysis Simon France J said this:[57] Leaving to one side any attempt to limit the definition of family,I consider a purpose of promoting the benefits of a stable family unit forsociety would likely be charitable. One of the research pieces commissioned96 Paul Rishworth "Freedom of thought, conscience, expression and belief" in Human Rights Law— New Frontiers (NZLS CLE Ltd, May 2019) 115 at 115.97 National Anti-Vivisection Society v Inland Revenue Commissioners, above n 4747, at 65.98 At 65.99 Second deregistration decision, above n 2727, at 45–51.100 High Court judgment, above n 1, at [69]–[73].101 At [72]. The Judge considered "the Board's analysis delved too much into an assessment ofthe merits of the publications".by Family First was a study by NZIER into the fiscal cost to society of familybreakdown and decreasing marriage rates. It is independent, peer reviewedresearch that makes a case to say the cost may be upwards of $1 billion a year.The report notes that its conclusions are necessarily based on a number ofassumptions but it is an item of evidence supporting a public benefit claim.Many working in areas such as the criminal justice sector would also no doubtattest to the obvious societal cost when children and young people are notraised in a supportive environment. Indeed, the statements cited from thevarious international documents appear to come from an unarticulatedrecognition of that cost to society when the family unit breaks down.It follows therefore that if Family First's purposes were solely to promotethe role of the family, there would be considerable strength to its claim forcharitable status.(Footnote omitted.)[96] That conclusion is reflected in the universal recognition of the family asthe fundamental group unit of society, which is entitled to protection and assistance,as found in many instruments of international law, for example, in art 16(3) ofthe Universal Declaration of Human Rights.102[97] We develop that analysis more fully in considering whether Family First is alsoa fourth head, public benefit, charity. But, for the purpose of considering whetherFamily First is a second head, educational purposes, charity, we are satisfiedthe answer to the fundamental question — whether the charitable purposes ofpromoting and disseminating research about the family are "for a public good"— isyes.Implementation and advancement of the objects[98] Having analysed and construed the objects, we now examine how Family Firsthas gone about implementing the objects. We consider it is important to contextualisethe activities undertaken by Family First, bearing in mind the permitted assumption ofbenefit to the public. The "Principles on Family" (quoted in full at [10] above) weredeveloped and released in around July 2006. The principles highlighted the meaningand significance of the family. The "Principles on Marriage" were released the samemonth.102 Universal Declaration of Human Rights, above n 74.[99] The development of the "Principles on Family" was accompanied by a pressrelease referring to their source, namely the World Congress of Families, andemphasising that such principles were intended to "bring us back to the core values ofthe family".103[100] In terms of such research, we have considered three questions:(a) How does Family First commission reports?(b) What is the character and content of Family First's reports?(c) How does Family First distribute and promote its reports?[101] The analysis which follows is drawn from the Family First materials containedin the case on appeal and in part from the affidavit evidence provided byMr McCoskrie.[102] With respect to the commissioning of reports or research papers, the processgenerally involved Mr McCoskrie approaching the authors to inquire whether theymight produce a "New Zealand version" of a report written by a similar"family values" organisation based overseas. In one instance Mr McCoskriepresented the authors with an open-ended thesis inviting them to write a report, and inanother the author approached Mr McCoskrie with an unsolicited proposal.[103] The background of the authors varied considerably. Some, such asProfessor Rex Ahdar and NZIER, were employed academics or researchers workingin a professional capacity. Another group comprised qualified professionals who workas self-employed researchers. A third group could be classed as articulate laypersonswithout any formal qualification relevant to the reports they authored. Mr McCoskriedeposed that all authors were identified based on the fact "they have already writtensimilar reports internationally or have demonstrated expertise in the field", thoughsome of whom were approached by Mr McCoskrie because he was on friendly termswith them.103 Family First New Zealand "Family First releases 'Principles of Family'" (press release, July 2006)[104] Mr McCoskrie deposed Family First and the author would first seek toestablish their mutual interest and then the paper would generally be formalised witha telephone or email confirmation. Family First's practice appears to have been toobtain a short proposal or research plan from the authors, quoting a price for the reportor paper and detailing the proposed research process, chapters and structure, andthe main hypotheses to be tested.[105] Family First gave authors significant latitude to complete the research as theysaw fit. Mr McCoskrie offered guidance to some authors in terms of the broad themesand hypotheses they were to focus on and, as already noted, in some cases Family Firstsought to "replicate" overseas research in the New Zealand context, implying similaroversight. Notwithstanding, the emails exhibited support the proposition that editorialcontrol for published work remained in the hands of the authors. Unsurprisingly, someexchanges acknowledge the wider political context and social debate to whicheach report contributes.[106] With regard to the character and content of the materials produced, papersauthored by working academics or professionals largely resemble, in content, tone andstyle, that of a journal article in the relevant field. By way of general comment only,and without seeking to engage in a detailed academic analysis or response, we makethe following observations:(a) Professor Ahdar's paper on euthanasia summarises and critiquesthe law in the style of law review article. It contains a review ofprevious legislative amendments, a summary table of sentencingnotes for assisting suicide and discussion of how the courts havetreated s 8 of NZBORA.(b) The NZIER review of the cost of family and marital breakdownsprovides an uncontroversial summary of the literature beforeembarking on a simple economic analysis which multipliesthe estimated fiscal cost of poverty with the estimated proportion ofpoverty caused by marital breakdown.104 This research paper wascritiqued in the judgment of Simon France J.105(c) An analysis of the mental and physical risks of abortion for womenby Dr Gregory Pike (a bioethicist) comprises a literature review whichargues in favour of a strong link between abortions and negativehealth outcomes for the women who receive them.106[107] The remaining reports appear to be authored by laypeople or professionals whoseem to be commentators engaged in various topics of social or public interest fromthe academic to the more polemic in style. For instance:(a) Lindsay Mitchell's three reports on family structure and socialoutcomes synthesise a range of census data and previous research bygovernment departments and academics to argue that marriagecorrelates with, and causes, lower rates of (i) child poverty; (ii) childabuse; and (iii) imprisonment.107(b) Glenn Stanton's two reports on parenting ("Why Mothers Matter" and"Why Fathers Matter") and a third on gender identity, are written ina chatty, colloquial style.108[108] A broader outline of Family First's educational activities was included ina summary provided to the Board which reviewed its work during 2015 as follows:109• research reports on Screentime and Gender Identity, sent to everyschool in NZ • our annual conference Forum on the Family and church leaders event104 NZIER, above n 25.105 High Court judgment, above n 1, at [57].106 Gregory Pike "Abortion and the Physical & Mental Health of Women" (Family First New Zealand,2018).107 Lindsay Mitchell "Child Poverty & Family Structure" (Family First New Zealand, 2016);Lindsay Mitchell "Child Abuse & Family Structure" (Family First New Zealand, 2016); andLindsay Mitchell "Imprisonment & Family Structure" (Family First New Zealand, 2018).108 Glenn Stanton "Why Mothers Matter" (Family First New Zealand, 2018); Glenn Stanton "WhyFathers Matter" (Family First New Zealand, 2018); and Glenn Stanton "Boys Girls Other" (FamilyFirst New Zealand, 2015).109 This was the last full year preceding the review of the First deregistration decision.• PROTECT education resource on euthanasia (including 50,000pamphlets sent throughout NZ to families & churches) andinvolvement with the Care Alliance as a partner organisation• production of our Family Matters episodes on various issues [hostedon its website]• legal action defending our charitable status• representing NZ and showcasing our work at the World Congress ofFamilies in Utah, US • speaking up on family issues in the media including Into the River,parental notification laws, paid parental leave, Easter trading,paedophile register, CYF issues, marijuana, marriage, and many otherissues in the public spotlight.• submissions to select committees on paid parental leave, paedophileregister, Easter trading, and to the 'Investigation into ending one's lifein New Zealand' inquiry.• search to find NZ's longest married couple[109] An examination of this material, set in the context of advancement of educationand research, shows Family First's clear purpose of stimulating a public debate andparticipating in public discourse on important social issues relevant to families.[110] A good illustration of such participation is "We Need to Talk: Screentime inNew Zealand", commissioned by Family First from Dr Aric Sigman, who worksindependently in health education.110 Dr Sigman's report discussesthe well-publicised problems caused by excessive screen time by children. The reportprovides "an overview of some of the evidence which has led health authorities toissue precautionary discretionary screen time guidelines".111 The recommendationsinclude parental rules limiting screen time, such as imposing time limits andforbidding screens in bedrooms and at mealtimes, encouraging parents to be good rolemodels through their own viewing habits, and suggesting that the amount of timechildren spend in front of a screen at school should be limited. This report has someeducative value and its author has considerable status, as Simon France Jacknowledged,112 and copies of the report were sent to schools around the country.110 Aric Sigman "We need to talk: Screen time in New Zealand" (Family First New Zealand, 2015).111 At 2.112 High Court judgment, above n 1, at [29].[111] More generally, it appears that for each report or paper, Family First prepareda media release which often generated a considerable amount of media attention.For instance, a report on child poverty and family structure led to nine storiesdiscussing the paper in mainstream media outlets and the NZIER paper onthe economic cost of family breakdown generated reports in four major newspapers.Some reports received less, or no, media coverage.[112] Family First also refers to the reports it commissions on its website. Contentfrom the Family First website, included in the case on appeal, showed severalexamples of the report being promoted alongside the prepared media release.The evidence supports wider dissemination to members of the public at least tothe extent that some of the reports published by Family First were also subsequentlydistributed in bulk to schools and churches.[113] We have referred to some of the research materials, not necessarily to assessthe merits of the analysis, their originality or arguments put forward, but rather toillustrate that the activities of Family First are broadly consistent with the objects inthe trust deed. We agree with Simon France J that the Board erred in its approach inthe second deregistration decision by seeking to engage too much with the detail ofthe research.113 The correct approach is to cross-check the activities of Family First,particularly in the implementation or furtherance of the research objects, to ensurealignment with the primary objects.[114] We agree with the approach of Hammond J in Re Collier when, in relation toresearch he suggested the courts should not readily be drawn into the fray:114I have to say that I have considerable sympathy for that viewpoint which holdsthat a Court does not have to enter into the debate at all; hence the inability ofthe Court to resolve the merits is irrelevant. Rather, the function of the Courtought to be to sieve out debates which are for improper purposes; and to thenleave the public debate to lie where it falls, in the public arena. As I will notelater in this judgment, this is in fact what Courts do in charity cases withrespect to book publication.113 At [72].114 Re Collier, above n 34, at 90.[115] Hammond J also emphasised the question to be considered on the topic ofeducational research is whether the relevant work "has at least some educative valueor public utility to enable recognition of it".115 In this context we considerthe minimum threshold has been reached in the case of the research commissioned byFamily First. What is also relevant is that public benefit (under the education head) ispresumed and we do not consider that the Board could properly have foundthe presumption rebutted by evidence to the contrary. The evidence we have discussed(much of which was not of course before the Board) illustrates why we have reachedthis conclusion.[116] We therefore agree with Mr Bassett's submission that the emphasis should beon Family First's predominant purpose of supporting families, including by educationand research, and not on conducting a micro-analysis of sub-purposes or particularresearch papers.[117] We also refer to the judgment of Kiefel J in Aid/Watch Inc in which, as well asmaking observations about advocacy cases (later endorsed by the Supreme Court inGreenpeace), she referred to the principles applicable to the advancement of educationhead of charity.116 The Judge emphasised the importance and value of publicdiscussion in the following terms:[71] It should not be seen as inconsistent with a court's maintenance ofthe existing law that it also recognises the importance and value of publicdiscussion, education and debate about aspects of the law and changes whichmight be made to it. The same may be said of government policy.Tha recognition reflects the reality of the greater involvement, nowadays, ofcitizens and organisations in the shaping of law and policy. Nevertheless, itremains necessary that benefits of this kind flow from the pursuit of changebefore an organisation can qualify as charitable.[118] Kiefel J also opined about the role of organisations engaged in "agitation forreform" stating:[73] It should not be assumed that the courts will be unable to discerna public benefit in trusts concerned with agitation for reform, at least wherethey encourage public debate or education, by way of disseminatingknowledge or information, upon legitimate topics. The decision in NationalAnti-Vivisection Society shows that, at the least, the courts may be able to115 At 92.116 Aid/Watch Inc v Commissioner of Taxation, above n 49, at [71].determine that a public benefit is not evident in a trust. Lord Parker'sstatement in Bowman may be understood as recognising the practicaldifficulties which will be presented in some cases involving trusts for politicalpurposes. Their public benefit may not be evident if they do not principallyinvolve public debate or other educative purposes.[119] In the High Court Simon France J accepted Family First had a "strong case forsaying that promoting the role of family in society would be charitable".117 The Judgealso accepted, we think correctly, that:118 some level of controversy in an organisation's purposes, and arguablyan inability to definitively conclude which side of the controversy is correct,would not seem to prevent an assessment of public benefit.[120] However, the Judge found against Family First largely because its activities inimplementing its research objects were not educational in that they involved:(a) promotion of causes;119(b) activities that were effectively ancillary to non-charitable purposes;120and(c) activities not all of which were for the public benefit.121[121] We have already addressed the third point, which requires no furtherelaboration. As to promotion of causes, we consider the Judge, like the Board in thesecond registration decision, failed to undertake a detailed analysis of the objects ofthe trust deed or construe their true meaning. He also gave too much weight tothe perceived activities of Family First. Moreover, unlike this Court, the Judge didnot have the benefit of the further evidence of Mr McCoskrie summarised above at[101]–[107].[122] The evidence we have reviewed establishes Family First recognisedthe importance of its objects and purposes to commission research on, and educate117 High Court judgment, above n 1, at [52].118 At [52].119 At [71].120 At [70].121 At [70].the public about, the importance of marriage and family life (including core familyvalues) in New Zealand society. Such research is valuable in promoting publicknowledge about marriage and families and the many issues that affect the family.Public discussion and debate about such important issues is desirable to encouragethe development of related policies and laws. The NZIER report is but one of manyexamples showing how Family First went about fulfilling its education and researchobjects.Charitable under the fourth head of public benefit?[123] Family First also asserts it is a trust established to promote and support (thatis, to advocate for) self-evident public goods, the institutions of the family andmarriage. Consequently, it submits it is a fourth head charitable trust established formatters which are beneficial to the community in the relevant sense. For Family First,Mr Bassett articulated that proposition in the submissions summarised above at [47].[124] It is with reference to such fourth head trusts where we see most clearlythe courts' development over time, by analogy with purposes already recognised ascharitable, of the concept of a charitable purpose.[125] In our view one of the challenges for the courts in undertaking that task areongoing changes in the conceptual underpinning of what does or does not constitutea presumptively charitable purpose (the relief of need and the advancement of religionand education) or a self-evidently charitable public good. The relatively recent, andcontinuing, move away from Judeo-Christian beliefs as a formal source of values tothe more secular and humanistic principles that underpin our civil rights-based societyis of particular significance in this context. An earlier example of a similardevelopment, regarding the conceptual foundation of religious purposes, is reflectedin Lord Reid's statement in Gilmour v Coats that:122The law of England has always shown favour to gifts for religious purposes.It does not now in this matter prefer one religion to another. It assumes that itis good for man to have and to practise a religion but where a particular beliefis accepted by one religion and rejected by another the law can neither acceptnor reject it. The law must accept the position that it is right that different122 Gilmour v Coats [1949] AC 426 (HL) at 458–459: Lord Normand and Lord Morton agreed withLord Reid.religions should each be supported irrespective of whether or not all its beliefsare true. A religion can be regarded as beneficial without it being necessaryto assume that all its beliefs are true, and a religious service can be regardedas beneficial to all those who attend it without it being necessary to determinethe spiritual efficacy of that service or to accept any particular belief about it.[126] That Greenpeace reflects, at least in part, an engagement with those issues isevidenced in the following passages from the majority judgment on the issue of cause,including political, advocacy:123[69] A conclusion that a purpose is "political" or "advocacy" obscuresproper focus on whether a purpose is charitable within the sense used by law.It is difficult to construct any adequate or principled theory to support blanketexclusion. A political purpose or advocacy exclusion would be an impedimentto charitable status for organisations which, although campaigning forcharitable ends, do not themselves directly undertake tangible good works ofthe type recognised as charitable.[70] As well, a strict exclusion risks rigidity in an area of law which shouldbe responsive to the way society works. It is likely to hinderthe responsiveness of this area of law to the changing circumstances ofsociety. Just as the law of charities recognised the public benefit ofphilanthropy in easing the burden on parishes of alleviating poverty, keepingutilities in repair, and educating the poor in post-Reformation ElizabethanEngland, the circumstances of the modern outsourced and perhaps contractingstate may throw up new need for philanthropy which is properly to be treatedas charitable. So, for example, charity has been found in purposes whichsupport the machinery or harmony of civil society, such as is illustrated bythe decisions in England and Australia holding law reporting to be a charitablepurpose and in New Zealand by the decision of the Court of Appeal in Latimerv Commissioner of Inland Revenue holding the assistance of Māori inthe preparation, presentation and negotiating of claims before the WaitangiTribunal to be a charitable purpose.[127] The context for those observations was twofold:(a) First, Greenpeace's challenge to this Court's endorsement ofthe political purpose exclusion. That is although this Court concludedGreenpeace could have a fourth head charitable purpose, it wouldnevertheless cease to be entitled to registration if the point wasreached where its political purposes became more than ancillary.123 Re Greenpeace of New Zealand, above n 13 (footnotes omitted).(b) Second, the Supreme Court's disapproval of the conceptual approachtaken by this Court in recognising Greenpeace's purposes, as to beamended, as charitable under the fourth head.[128] The relevance of that analysis here is, at a high level, reflected in the expressterms of the separate reasons given by the Board for its two disqualification decisions.In the first of those decisions the Board regarded Family First's purposes andactivities, being in its assessment principally advocacy of controversial politicalcauses, as disentitling Family First from charitable status. But, as Collins J observed,that approach was inconsistent with the Supreme Court's conclusions inGreenpeace.124 Then, in its second decision, the Board re-categorised the samepurposes and activities as constituting advocacy by Family First of its own,conservative and controversial, views on family and marriage, with the samedisentitling effect.[129] The real question here is whether that recharacterisation reflects the substanceof the Supreme Court's reasoning in Greenpeace, both on the question of advocacycharities generally and the significance of political advocacy more particularly, as wellas its understanding of public benefit in the context of fourth head charities.Put another way, is the change of characterisation of Family First's disqualifyingpurposes and activities merely a change of label, with no effect on the substantiveissue Collins J identified? Or does that recharacterisation properly respond to theSupreme Court's substantive analysis and therefore correctly identify the reasons todisqualify Family First as a charity?[130] We therefore turn to the concept of public benefit which qualifies asa charitable, fourth head purpose and, in turn, the position following Greenpeace ofadvocacy trusts, including political advocacy trusts.[131] The concept of public good for fourth head purposes is captured by the Act inthe phrase "or any other matter beneficial to the community", where beneficial isunderstood in the relevant analogously charitable sense.125124 Re Family First New Zealand, above n 20, at [84].125 Charities Act, s 5(1)[132] The place of advocacy in the legal scheme for charities is reflected in s 5(3) ofthe Act, which provides:(3) To avoid doubt, if the purposes of a trust, society, or an institutioninclude a non-charitable purpose (for example, advocacy) that ismerely ancillary to a charitable purpose of the trust, society, orinstitution, the presence of that non-charitable purpose does notprevent the trustees of the trust, the society, or the institution fromqualifying for registration as a charitable entity.[133] If from that expression it could be inferred advocacy was never a charitablepurpose, the Supreme Court's decision in Greenpeace makes it clear that is notthe case.[134] Following Greenpeace, an entity that provides no or limited tangible publicbenefit and is primarily engaged in cause advocacy may qualify under the fourth headof charity, depending on the circumstances. Whether such purposes are for the publicbenefit in the sense the law regards as charitable will depend on the end sought to beachieved and the means and manner of its promotion:126[76] Instead, assessment of whether advocacy or promotion of a cause orlaw reform 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.[135] Thus, Greenpeace opened the door to cause advocacy as a potentiallycharitable purpose in New Zealand (or found it never to have been properly closed).Examples mentioned by the Supreme Court were the promotion of law reform ofthe type undertaken by law commissions to keep laws fit for purpose, purposes whichsupport the machinery or harmony of civil society such as law reporting, assistingMāori to advance claims before the Waitangi Tribunal, advocacy for human rights orfor the protection of the environment.127 However, these cases were cited as examplesnot in any attempt to define the define the metes and bounds of the fourth head.That falls to be done by analogy.126 Re Greenpeace of New Zealand Inc, above n 13.127 At [62] and [70]–[71].[136] The end promoted by Family First is the support of marriage and family or corefamily values. This is an abstraction not dissimilar to the examples given inGreenpeace of world peace or nuclear disarmament. As already analysed,Family First seeks to educate and conduct research. As relevant for fourth headpurposes, it also seeks to promote ideas and participate in the democratic process toadvance the interests of families. The assessment of whether there is public benefit ina charitable sense therefore requires consideration of the end promoted and the meansand manner of that promotion.[137] While the expressed objects in the trust deed do not clarify exactly whatFamily First means by the terms "marriage" and "family", as already noted, thestatements of principle on its website make its position clear. We have already referredto the origins of these principles at [98]–[99] above.[138] We consider few would argue that an overall objective of supporting, ina selfless way, the role and importance of families and marriage would not beself-evidently beneficial, in an analogously charitable sense, as a public good.As Simon France J observed, New Zealand is a signatory to various internationaltreaties, declarations and other instruments, affirming the fundamental importance offamilies in society and the obligation on states to protect them in the scheme of humanrights more generally.128[139] The Judge referred to art 16 of the Universal Declaration of Human Rights:1291. Men and women of full age, without any limitation due to race,nationality or religion, have the right to marry and to found a family.They are entitled to equal rights as to marriage, during marriage andat its dissolution.2. Marriage shall be entered into only with the free and full consent ofthe intending spouses.3. The family is the natural and fundamental group unit of society and isentitled to protection by society and the State.128 High Court judgment, above n 1, at [53].129 At [53]; citing Universal Declaration of Human Rights, above n 74.[140] Together with art 10 of the International Covenant on Economic, Social andCultural Rights:130The States Parties to the present Covenant recognize that:1. The widest possible protection and assistance should be accorded tothe family, which is the natural and fundamental group unit of society,particularly for its establishment and while it is responsible forthe care and education of dependent children. Marriage must beentered into with the free consent of the intending spouses.[141] And the preamble of the Convention on the Rights of the Child:131The States Parties to the present Convention,Convinced that the family, as the fundamental group of society and the naturalenvironment for the growth and well-being of all its members and particularlychildren, should be afforded the necessary protection and assistance so that itcan fully assume its responsibilities within the community [142] Examples of equivalent affirmations can be found in other internationalinstruments that highlight fundamental principles of human rights.132[143] Reflecting those affirmations of the role of the family and of marriage asa foundation for family life, society has long recognised the negative consequences ofthe absence of stable family life for children and their parents. There are any numberof ways in which that recognition is reflected in New Zealand today. For example,and of significance in terms of contemporary moves to reimage and transformNew Zealand's criminal justice system, is the seventh recommendation of the secondreport of Te Uepū Hāpai i te Ora/the Safe and Effective Justice Advisory Group:Turuki! Turuki! Move Together! which states:133130 At [53]; citing International Covenant on Economic, Social and Cultural Rights 993 UNTS 3(opened for signature on 19 December 1966, entered into force 3 January 1976).131 At [54]; citing Convention on the Rights of the Child 1577 UNTS 3 (opened for signature20 November 1989, entered into force 2 September 1990), preamble.132 See, for example, European Social Charter 529 UNTS 89 (opened for signature 18 October 1961,entered into force 26 February 1965), art 16; and African Charter of Human and Peoples' Rights1520 UNTS 217 (opened for signature 1 June 1981, entry into force 21 October 1986), art 18(1).133 Te Uepū Hāpai i te Ora/Safe and Effective Justice Advisory Group: Turuki! Turuki! MoveTogether! (December 2019) at 9. that together we address poverty and social deprivation, increase supportfor parents and families and challenge attitudes and behaviour that supportfamily violence.[144] Simon France J was well aware of such matters. We venture to observe thatno-one familiar with the association of crime and social disadvantage in contemporaryNew Zealand could be otherwise.[145] Notwithstanding, the Judge was of the view that Family First's focus on whatthe Board had called, and the Judge accepted as, the "traditional family" was a bar tocharitable status. We disagree with that conclusion for the following reasons.[146] Most basically, the fact that Family First favours, to use the Board's phrase,the "traditional family" does not in our view mean that its advocacy for family andmarriage as important and valuable institutions loses the necessary advancement ofa public, charitable, benefit. We acknowledge there is in New Zealand, consistent withour tradition of pragmatic and progressive social theory and legislation, a recognitionand acceptance of alternative forms of family, including as based on de factorelationships, civil unions and same-sex marriages. Nevertheless we can take judicialnotice of the fact that by far the larger part of the social groups constituting familiesin contemporary New Zealand, at least in the nuclear family sense, are those based oncivil or religious marriages between men and women.[147] It would be curious if promotion of what the Board called the "traditionalfamily" would cease to be of public benefit because there is a growing acceptance ofother forms of stable family life, including within whānau and hapū relationships.[148] And to be fair, Family First recognised the contribution non-traditional formsof family life can make. As it says in its Statement of Principles:We acknowledge the tremendous contribution made by single, adoptive andstep-parents and extended whānau in society. We wish to ensure they receiveappropriate levels of assistance, without denying the clear empirical evidencethat the best environment in which to raise children is the biologicaltwo-parent, husband-wife family.[149] Thus far, and recognising the possible significance of Family First's advocacyof specific legal recognition of certain forms of family and marriage over others, weare satisfied that Family First's purposes and principles are ones which promotea public benefit in a manner analogous with public charitable benefits as recognisedin New Zealand over time.[150] We think that conclusion is consistent with what has been described asa "progressive" approach the courts of New Zealand have taken to the question ofcharitable benefits under the fourth head of charity. This was recently recognised byJuliet Chevalier-Watts in her text Charity Law: International Perspective where shewrites, speaking of the recent decisions in Liberty Trust, Re The Foundation ForAnti-Aging Research and Greenpeace itself:134Thus, this foray into contemporary public benefit reveals that New Zealandappears, generally, to be progressive in its approach, even when faced withnovel circumstances that might otherwise call for a more conservativeapproach. This may then be a reflection of its socially progressive outlook asa nation generally. For instance, in matters such as personal rights andfreedoms; schooling and tertiary education; and tolerance and inclusion ofminority groups, and charity law underpins this outlook, due to the closecorrelation between societal progression, requirements, and charity.[151] We also think that conclusion, thus far, is consistent analogously withthe "moral and mental improvement" cases on which Family First relied in itssubmissions. Whilst we acknowledge the terminology of "moral and mentalimprovement" has something of an earlier age quality to it (as discussed at [65] above,Dixon J in Barby referred to "raising moral standards or outlook"), that in itself reflectsour earlier observation that the conceptual basis of public benefit and charitablepurpose has developed over time. By analogy, there is little to distinguishFamily First's objects and purposes, especially as encapsulated in Object B, fromthose of trusts recognised as charitable in those earlier cases. For Family First,Mr McKenzie pointed to examples of charitable purposes being recognised incircumstances where:(a) A trust for advancing temperance provided a "dry" public house(including a free reading room) where the inhabitants of town couldgather.135134 Juliet Chevalier-Watts Charity Law: International Perspectives (Routledge, Oxfordshire, 2018)at 171 (footnote omitted).135 Commissioners of Inland Revenue v Falkirk Temperance Café Trust 1927 SC 261 (IH).(b) A bequest was made for the purposes of spreading Christian principlesand aiding all active steps to minimise and extinguish "the drinktraffic".136(c) A vicar provided, in his will, for the gift of a building used as a villageclub and reading room to be maintained for the furtherance ofreligious and mental improvement and to be kept free from intoxicantsand dancing.137(d) A society was established for the study and dissemination of ethicalprinciples and the cultivation of rational religious sentiment.138(e) A bequest for carrying on the teachings of Dr Rudolf Steiner directedto the extension of knowledge of the spiritual in man and inthe universe generally and of the interaction of the spiritual andthe physical.139[152] In summary, Object B, which is to promoted the understanding of (amongstother things) the moral framework of a just and democratic society, has a clearcommon character with the tangible public benefits broadly classified underthe banner of "moral and mental improvement". We accept that in determiningwhether the stated purposes are for the public benefit in the required sense, it is notsufficient to show "[a] mere connection [to] the charitable purposes of others"directed to the same end.140 Thus alleged intangible benefits require clear proof ofpublic benefit.141 Here, Family First was established and has consistently sought tofulfil that purpose and to support families by engaging in issues relevant tothe self-evidently important role of families in society and core family values.136 Re Hood [1931] Ch 240 (CA).137 Re Scowcroft [1898] 2 Ch 638 (Ch).138 Re South Place Ethical Society, above n 87.139 Re Price [1943] 1 Ch 422 (Ch).140 Aid/Watch Inc v Commissioner of Taxation, above n 49, at [69].141 Gino Dal Pont Charity Law in Australia and New Zealand (Oxford University Press, Melbourne,2000) at 175.[153] Finally, we recognise the point made by CLAANZ, of the public benefitassociated with free speech and associated political discourse in a rule of law, liberaland democratic society such as New Zealand. That is an aspect of public benefit thatactivities of organisations such as Family First, albeit from a traditional point of view,and other organisations expressing more liberal views, can contribute to. After all,the societal values associated with family life and marriage — both in Family First'smore traditional approach and in more contemporary liberal approaches — withsustaining stable and supportive environments for both children and adults to live,grow and develop in, remain ideals to be strived for, but not always achieved.[154] We are, for all those reasons, satisfied that with reference to its objects andpurposes and taking account of the ways in which Family First seeks to advance thoseobjects and purposes, it is advancing a public benefit, and hence is entitled tocharitable status.[155] We turn, therefore, to the final question: does Family First nevertheless havepurposes (including as reflected in its activities) of a non-charitable nature that aremore than merely ancillary?Non-charitable and non-ancillary advocacy for specific political/legislativeresponses?[156] Given their conclusion that the "traditional family" focus of Family Firstdisentitled it to charitable status, the Board and Simon France J did not consider in anydetail the possibility that Family First's activities which were properly to becharacterised as non-charitable were no more than ancillary to the charitable purposeswe have recognised. For that reason, we considered referring the question back to theBoard but concluded, given the long history of this matter, that would not be a sensibleoutcome. We accept that if there are competing views as to how a generally acceptedpublic good should be reflected in law, it will be difficult to call advocacy for any ofthose specific responses charitable, in the sense of providing a public benefit. In thatcontext, and on the material before us, it is therefore necessary to consider whetherFamily First's advocacy for specific, in particular legislative, outcomes in areas ofconcern to it constitutes non-ancillary, non-charitable purpose. It is proper toacknowledge that, notwithstanding the implication for the Board of Family First's"traditional family" focus, another way to understand the Board's decision is thatthe view it reached was that Family First did indeed have such non-ancillary,non-charitable purposes.[157] Having said that, the starting point for an analysis of whether potentiallynon-charitable purposes are ancillary must be the context provided by what we haverecognised as the charitable purposes of Family First.[158] The Board only considered the ancillary test in the reverse way: that is, it askedwhether Family First's advocacy purpose was ancillary to another charitablepurpose.142 Given the Board's conclusion that the bulk of Family First's purposes andactivities were non-charitable, it concluded that any advocacy that was capable ofadvancing a public benefit was a very small part of Family First's overall endeavour.Accordingly, the promotion of its point of view on marriage and the traditional familycould not be considered secondary or incidental to another charitable purpose.143[159] We think the issue here is whether, to the extent that Family First has advocatedfor positions on specific issues where views differ, Family First has a non-charitablepurpose that is more than ancillary.[160] On this issue the approach of the majority in Greenpeace is important.We have already referred (at [72] and [126] above) to the comments of Elias CJ,writing for the majority, that as a policy matter the exclusion of political purpose orcause advocacy is unnecessary. Having so held the Chief Justice opined thatthe advancement of causes will often, perhaps most often, be non-charitable.144She went on to endorse the minority view of Kiefel J in Aid/Watch that "reachinga conclusion of public benefit may be difficult where the activities of an organisationlargely involve the assertion of its views".145 The Chief Justice also referred tothe decision of this Court in Molloy, commenting that it "seems correct".146142 Second deregistration decision, above n 2727, at [36].143 At [36].144 Re Greenpeace of New Zealand Inc, above n 13, at [73].145 At [73]; quoting Aid/Watch Inc v Commissioner of Taxation, above n 49, at [69].146 At [73]; referring to Molloy v Commissioner of Inland Revenue, above n 16.[161] For our analysis the following observations of the majority in Greenpeace areinstructive:[74] It may be accepted that the circumstances in which advocacy ofparticular views is shown to be charitable will not be common, but that doesnot justify a rule that all non-ancillary advocacy is properly characterised asnon-charitable. As Professor Sheridan observed in 1972, in relation topromotion of legislation, the true rule is that advocacy is "charitable in somecircumstances and not in others". We agree with the view expressed byKiefel J in Aid/Watch that charitable and political purposes are not mutuallyexclusive. As a result, we depart from the approach taken in the Court ofAppeal. If it was correct to find that the promotion of nuclear disarmamentand the elimination of all weapons of mass destruction are charitable(the matter we next address), we do not think it should have found "political"activity properly connected with those purposes to exclude such charitablestatus unless shown to be ancillary only.(Footnotes omitted.)[162] We also include reference to the Chief Justice's concluding comments onthis topic:[76] Instead, assessment of whether advocacy or promotion of a cause orlaw reform 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.[163] Finally we refer to the Chief Justice's conclusions (for the majority):[103] Since the educational objects of Greenpeace are conducted througha separate charitable trust, any educational element in promoting the ends ofnuclear disarmament and the elimination of weapons of mass destructionseems unlikely to be central to the promotional effort. The emphasis on directaction and advocacy on the Greenpeace website may indicate the principalmeans of promotion. Although, for the reasons given, a political purposeexclusion is inappropriately conclusive when considering charitable purpose,we consider that the promotion itself, if a standalone object not merelyancillary, must itself be an object of public benefit or utility within the senseused in the authorities to qualify as a charitable purpose. As indicated aboveat [59]–[71], such public benefit or utility may sometimes be found inadvocacy or other expressive conduct. But such finding depends on the widercontext (including the context of public participation in processes and humanrights values), which requires closer consideration than has been brought tobear in the present case.[164] We consider Family First's engagement in the deliberations of the communityon issues such as abortion, assisted death, anti-smacking laws, 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.[165] Any attempt to label such engagement generally as cause advocacy ofa political nature is not helpful. To repeat the words of Kiefel J (as quoted bythe Chief Justice in Greenpeace), "charitable and political purposes are not mutuallyexclusive."147[166] The manner and means in which Family First engages on specific issues andin overtly political processes (such as elections) was summarised by Family First itselfin what it described as its "policy priorities". As published on its website, and referredto by the Board in its second deregistration decision, those matters were:148a. "Promoting marriage and families" (which includes advocacy ona wide range of issues in relation to marriage, divorce, child abuse,the availability of alcohol, tobacco and gambling, taxation of families,aged care and sex education).b. "Promoting life" (which includes advocacy against abortion, tomaintain the status quo on euthanasia and against embryonic cellresearch).c. "Promoting community values and standards" (which includesadvocacy to change prostitution laws, [reduce] the availability ofpornography and for stricter broadcasting standards and censorship).[167] An earlier example of a similar publication was the following "Policy CheckList" published at the time of the 2008 general election:149Family First NZ says the upcoming election is not just about taxation, andhave released family policies which they are encouraging voters and familiesto check against the policies of each political party."Many commentators seem to think that this election is all about tax cuts andthe economy," says Bob McCoskrie, National Director of Family First NZ."Economical issues are important, but far more important than what we get isthe type of society and values we are building (or destroying) for our futuregenerations — our respect for life — the strengthening of families —the safety and wellbeing of our children — and laws that protect our families.""It is interesting to observe media coverage of politician 'walkabouts' wherevoters seemed more interested in talking about the anti-smacking legislationand education than they were tax cuts. Families deserve laws that strengthenand protect them — not ones that redefine and undermine them according topolitically correct ideology."147 At [74]; citing Aid/Watch Inc v Commissioner of Taxation, above n 49, at [68]–[69].148 Second deregistration decision, above n 27, at [25]; referring to Family First New Zealand "FamilyPolicy Priorities" <www.familyfirst.org.nz>.149 Family First "It's Not Just About Tax Cuts — Family First Releases Policy Check List"(press release, 13 October 2008).The policy check list can be viewed on Family First's website and coversthree broad areas; promoting marriage and families, promoting life, andpromoting community values and standards."Family First is not a political party. Our role is to be a voice for families inthe public domain, and to research and advocate for family and marriageissues," says Mr McCoskrie.Some of the policies that Family First are promoting for all political parties toadopt include:− amending the welfare and tax systems to eliminate disincentives tomarriage and marriage penalties− recognise that parents have primary responsibility for nurture, raisingand educating of children, and governments should respect andsupport the exercise of parental responsibilities− replace the offices of Children's Commissioner and FamiliesCommission with a Ministry of Families− Establish an independent CYF complaints authority so parents havean avenue to appeal the intervention of CYF and to safeguard againstabuse of state power− Develop and enforce higher standards for TV, film, radio andadvertising content including levels of violence, sexual content andobjectionable language.and others in the areas of child abuse, euthanasia, family economics, agedcare, abortion, street prostitution, parental notification for teen pregnancy, andpornography."Strong families make a strong nation. We are encouraging voters to lookbeyond just the economical issues to the type of society and values we wantto build for our children and future generations," says Mr McCoskrie.[168] We do not consider that type of activity, in the context of Family First's overallcharitable educational and advocacy purposes, to be non-charitable activity of a morethan ancillary nature. Rather, taken together, those public statements reflect the broadrange of Family First's activities, including advancement of their charitable objects,such as the promulgation of ideas and issues the subject of commissioned researchpapers.[169] The more difficult issue is the extent to which Family First has advocated overtime for very specific approaches on issues of the day. As already noted above at [12],it seeks to discourage divorce, opposed the liberalisation of laws relating toprostitution and the availability of abortion, sought an exemption for "light parentalsmacking" from the anti-smacking legislation and is currently seeking to preservethe status quo in the forthcoming referenda on cannabis and euthanasia.[170] We accept that those specific issues are very clear examples where reasonableand informed views may differ, so that no one position or outcome advocated couldbe said to be self-evidently in the public interest in terms of the approach taken priorto the Supreme Court's Greenpeace decision. Nor are such issues easily assessableon some evidential basis.150 By the same token, neither could support for or advocacyof opposing points of view on the same issues be advocacy of self-evident publicbenefits.[171] But Greenpeace has signalled a change in that approach. As Mallon J observedof the Board's understanding of the post-Greenpeace position:151The Board took [the Supreme Court's qualification that the charitable statusof cause, including political, advocacy would depend on the nature of thatadvocacy] as meaning that if the advocacy involved advancing particularviews, on which there were competing views and interests, thenGreenpeace NZ needed to demonstrate that its views were of public benefitand it could not do so. I agree with Greenpeace NZ that this approach isincorrect. Protecting the environment will often come at the cost of competinginterests, but advocating for its protection, in opposition to competinginterests, is no less in the public benefit because of that. The Supreme Courtcannot have meant that the nature of the advocacy will be disqualifying ifan organisation advocates for environmental protection of a kind for whichthere will be opposition.[172] In other words, the approach following Greenpeace would appear to recognisethe courts' role in contemporary society — as regards fourth head charities — as beingone of recognising goals and objectives of general public benefit. Having done so,the Court will not seek to reach a concluded view on self-evident public benefit onspecific issues where views may differ. Nor will advocacy in support of one or otherof the competing viewpoints necessarily disqualify an organisation from charitablestatus. The relevant question will be, as Mallon J grapples with in her decision,the extent to which the penumbra of the relevant public, general, good.150 The authors of Tudor on Charities, above n 7272, at [1-074] suggest the courts in England engagein some form of balancing exercise of perceived benefits, and refer to cases evidencing that approach,including National Anti-Vivisection Society v Inland Revenue Commissioners, above n 47. It was notsuggested to us that either the Board, or the courts in New Zealand, take a similar approach.151 Greenpeace of New Zealand v Charities Registration Board, above n 71, at [85].Implicitly, the less direct connection there is between the specific and the general,the more likely will be a negative answer to that question.[173] That development can be seen as analogous to that which has occurred asregards the third head, the advancement of religion. That is, belief in religion is seenas a good thing: and so the courts do not distinguish between particular religions, orconsider advocacy of specific beliefs and practices which one group believes in butnot another as a bar to charitable status.[174] So, advocacy for a specific position on a matter, such as on the very difficultquestion of euthanasia, would not preclude an assessment as to charitable status.[175] In the case of Family First, whilst at any one time advocacy of a specificoutcome may be of particular significance, the issues of that nature which Family Firstfocuses on would appear to change and develop in response to particular issues ofthe day. By contrast, Family First's educational and advocacy charitable purposes asregards the institutions of family and marriage have been generally constant over time,evidencing that its advocacy on specific issues can properly be seen as ancillary tothose general charitable purposes discussed above: (a) education and researchpurposes or (b) fourth head charitable advancement of marriage and family values.[176] Having said that, there are issues on which Family First advocates forparticular positions which, whilst consistent with the values which underpin its supportof the institutions of marriage and family, are ones that may fall outside the penumbraof the advocacy of the public goods of family and marriage as currently recognised.Issues such as divorce, alternative forms of marriage and, as the Supreme Courtrecognised when acknowledging the apparent correctness of the decision in Molloy vCommissioner of Inland Revenue, abortion, may fall within that category.152Family First will need to bear that in mind as it determines its priorities and activitiesfor the future.152 Molloy v Commissioner of Inland Revenue, above n 16.Human rights law considerations[177] In the High Court Simon France J was attracted to an argument against publicbenefit based on the discriminating effect of the activities of Family First. The Judgesaid this:153In relation to marriage, Family First's model, to the extent it involves lawchange favouring the traditional family unit, would on its face run counter tohuman rights law which prohibits discrimination on such bases. Unless ableto be shown to be a reasonable limit, the position advocated for would beunlawful, an obstacle to charitable status.[178] Mr Bassett submits the Judge was wrong to apply the concept of discriminationin the area of charities law. He argues that the Human Rights Act is not engaged asFamily First is not supplying goods or services, nor providing employment.He suggests the Act does not apply to the activities of Family First relevant to thequestion of whether the second deregistration decision ought to have been made bythe Board. The Human Rights Act would, of course, apply to prevent Family Firstfrom discriminating in relation to its internal employment policies, for example byonly employing married women or heterosexual persons.154[179] In response, Mr Gunn submits that this misunderstood Simon France J's point.He did not suggest that Family First was engaged in unlawfuldiscrimination. Rather, the point was that the law changes it promoted would favoura particular marital status and would, on their face, conflict with the prohibition ofdiscrimination in human rights law.[180] It is well established that an illegal purpose is disqualifying, and illegalactivities may in turn indicate an illegal purpose.155 However, our assessment is that,whether or not the law changes advocated by Family First are in tension with humanrights law, its purpose in advancing them cannot be considered to be illegal in therelevant sense. Proposing and enacting legislative amendments is not unlawful, evenif what is proposed conflicts with the Human Rights Act or NZBORA, and we do notconsider illegality in this context extends to the more abstract judgment whether the153 High Court judgment, above n 1, at [64] (footnotes omitted).154 Human Rights Act 1993, s 22.155 Re Greenpeace of New Zealand Inc, above n 13, at [111].desired end conflicts with NZBORA. Nor is there any suggestion that Family Firstengages in unlawful activities, such as the types of non-violent direction action at issuein Greenpeace. We therefore do not consider Family First's positions create anobstacle to their charitable status in the manner the Judge suggested.CLAANZ's submissions[181] As recorded above at [56]–[58], CLAANZ suggests that removal of a taxsubsidy to a previously registered charitable entity could be an unreasonable limitationon its right to freedom of expression, particularly if this meant it could not continue toengage in its political purposes. We accept, of course, that removal of registration willhave an effect on Family First financially. However, CLAANZ did not provide anyevidence to suggest that its activities could not continue without the tax benefits itcurrently enjoys. Moreover, Family First did not advance this point as one of its20 grounds of appeal. The issue was raised neither before the Board nor in theHigh Court. In these circumstances, we do not consider it is necessary to address thisissue further.Result[182] The appeal is allowed.[183] The decision of the Charities Registration Board dated 21 August 2017to remove Family First New Zealand from the Charities Register is set aside.[184] There is a declaration that Family First New Zealand qualifies for registrationunder the Act.GILBERT J[185] The question whether Family First qualifies for charitable status has beensubjected to intense scrutiny ever since the Board carried out its initial investigationleading to the first deregistration decision in April 2013. That was over seven yearsago. This is now the fifth decision dealing with the issue.[186] The majority's judgment stands alone in concluding that Family First isan organisation primarily established and maintained for the advancement ofeducation.156 Having found that presumptively charitable purpose, the majority alsofind a second purpose, namely "to promote and support (that is, to advocate for)self-evident public goods, the institutions of the family and marriage".157 This purposeis said to qualify as a public benefit in the charitable sense under the fourth head ofcharity.158 Thus, Family First qualifies for registration under the Act.159[187] The majority then address areas of potential vulnerability in Family First'sclaim to charitable status.160 In particular, "whether, to the extent Family First hasadvocated for positions on specific issues where views differ, Family First hasa non-charitable purpose that is more than ancillary".161 The majority conclude thatFamily First's advocacy on these specific issues can properly be seen as ancillary toits charitable purposes of "education and research" or the "advancement of marriageand family values".162[188] Despite finding Family First's purposes are charitable and its advocacy onspecific issues is no more than ancillary to those charitable purposes, the majorityconsidered referring the question of registration back to the Board. This was becauseneither the Board nor Simon France J had considered "in any detail the possibility thatFamily First's activities which were properly to be characterised as non-charitablewere no more than ancillary to the charitable purposes we have recognised".163Here, the majority refer to "issues on which Family First advocates for particularpositions which, whilst consistent with the values which underpin its support ofthe institutions of marriage and family, are ones that may fall outside the penumbra ofthe advocacy of the public goods of family and marriage as currently recognised".164I strongly support the majority's decision not to remit the matter back to the Board forfurther consideration of this topic.156 Above at [74]–[122] and particularly [90]–[92].157 At [91] and [123].158 At [154].159 At [184].160 At [156]–[176].161 At [159].162 At [175].163 At [156].164 At [176].[189] I am otherwise unable to subscribe to the majority judgment. I would dismissthe appeal. I consider Simon France J was correct to dismiss Family First's appealfrom the second deregistration decision. I also agree with his reasons.[190] In consequence of the various hearings and the appropriately liberal approachadopted to the receipt of further evidence and submissions, this Court has receiveda comprehensive suite of information about Family First's purposes and its activitiesover the last 10 years, far more information than would normally be available ona charity registration decision. The comprehensive nature of the evidence leaves littleroom for doubt about Family First's purposes or its activities.[191] As its original name suggests — "Family First Lobby" — Family First isessentially a lobby group which promotes its particular viewpoint on family andmarriage. It opposes law reform on issues such as abortion, euthanasia, divorce,same-sex marriage, prostitution, pornography, censorship and child smacking.The promotion of these views is in furtherance of its objects, for example, "to promote policy" (object A), "to participate in social analysis and debate" (object C),"to produce and publish relevant and stimulating materials in newspapers, magazines,and other media" (object D) and "to be a voice for the family in the media speakingup about issues relating to families" (object E).[192] Although object B uses the word "educate" — to "educate the public in theirunderstanding of the institutional, legal and moral framework that makes a just anddemocratic society possible" — this also involves Family First promoting itsparticular viewpoints, including that the "traditional family" is the fundamental socialunit (the union of a man and a woman through marriage and their biological children).Family First holds to the view that the "natural family cannot change into some newshape" or "be re-defined by social engineering". Family First describes other familyforms as "incomplete or fabrications of the state". This interpretation of what is meantby "to educate the public" in object B (namely, promotion of its particular viewpoints)is supported by object C — "to network with other like-minded groups andacademics".[193] I do not consider these objects fit comfortably with the advancement ofeducation. Simon France J found that Family First's "primary activity is advocacy fora specific viewpoint".165 The Judge said he understood this was conceded.166I consider it to be beyond argument.[194] The majority criticise Simon France J's judgment because it "touched onlybriefly on the advancement of education category".167 I consider the Judge was correctto do so. Unless Family First's purpose of promoting/advocating its particular viewsis of public benefit in the way the law regards as charitable (thus qualifying underthe fourth head), it is not entitled to registration irrespective of whether it hasan additional charitable purpose of advancing education. Family First did not shrinkfrom the task of attempting to demonstrate that its advocacy purpose is charitableunder the fourth head. It confronted the issue head-on, leading off with this as itsprimary argument on appeal. As the majority observe, it appears fromSimon France J's judgment that this is how the argument was run in the High Court aswell.168[195] To put this in perspective, in December 2015, Charities Services askedMr McCoskrie of Family First to provide a description of its "advocacy" onany "causes" and the proportion of its total time devoted to such advocacy.Mr McCoskrie replied in February 2016 that he estimated Family First spent75 per cent of its time on advocacy for the following causes:(i) Promoting marriage and families (including advocacy in the areas ofstrengthening marriage, parenting, the Child Youth and FamilyServices, child abuse, family economics, aged care and sexeducation);(ii) Promoting life (including advocacy against abortion, to maintain thestatus quo in relation to euthanasia and against embryonic cellresearch); and(iii) Promoting community values and standards (including advocacy inthe areas of prostitution, pornography and standards and censorship).165 High Court judgment, above n 1, at [48].166 At [60].167 Above at [94].168 At [94].Mr McCoskrie said the balance of 25 per cent of Family First's time was spent on"administration, fundraising and supporter/database management". Education wasnot mentioned. To give further perspective on the relative importance of this aspectof Family First's purposes and activities, in the 14 years since Family First was formedit has published a total of 21 reports on its website.[196] The critical issue in the case has always been whether Family First'sacknowledged non-ancillary advocacy purpose as described qualifies under the fourthhead.169 On the current state of the law, based on the Supreme Court's guidance inGreenpeace, I agree with Simon France J that the answer must be "no".[197] The majority consider that "the institutions of the family and marriage" areself-evidently beneficial as a "public good".170 I assume "public good" in this contextis a reference to the public benefit test required under the fourth head of charity.171Assuming that to be so, it is questionable whether the "traditional family" or "family"is a public benefit in the sense the law regards as charitable, rather than a section ofsociety on whom charitable benefits may be conferred. The majority's analysisappears to conflate the two limbs of the public benefit test. The purpose must be suchas to confer a benefit on the public or a section of the public (the benefit component)and the class of persons eligible to benefit must constitute the public or a sufficientsection of the public (the public component). The traditional family (or familygenerally) is the public component, not the benefit component. The family is not abenefit fitting within the spirit or intendment of the preamble to the Statute ofElizabeth with the object of relieving the burden that would otherwise fall on parishratepayers — such as relief of aged and poor people, repair of bridges etc. The parishratepayers (the public component) would typically be families fitting Family First'sconception of the traditional family. I consider the focus on "family" as a "self-evidentpublic good" is misplaced and does not satisfy the benefit component.169 This is why the appeal against the first deregistration decision was held up to await the SupremeCourt's judgment in Greenpeace: see Re Family First New Zealand, above n 20, at [14]. It is alsowhy CLAANZ was given leave to address the Court on the topic of "determining whethera political advocacy organisation exists for a charitable purpose of public benefit, wider benefitsflowing from the means and manner of its political advocacy, including from the fact of thatadvocacy itself, should be taken into account". These were mis-steps if none of Family First'sobjects fit within this category.170 Above at [123] and [138].171 At [131].[198] The question is whether Family First provides a benefit to the community, ora section of it, that the law regards as charitable. Family First's advocacy provides notangible public benefit to families. It is therefore necessary to consider whether inpromoting or advocating its specific viewpoints or causes, the ends promoted, orthe means and manner of promotion, are of a public benefit in the charitable sense.172[199] It is helpful to revisit what Elias CJ said in Greenpeace about whetheradvancement of causes is likely to qualify as charitable under the fourth head:173[73] Advancement of causes will often, perhaps most often,be non-charitable. That is for the reasons given in the authorities — it is notpossible to say whether the views promoted are of benefit in the way the lawrecognises as charitable. Matters of opinion may be impossible to characteriseas of public benefit either in achievement or in the promotion itself. Furthermore, the ends promoted may be outside the scope of the cases whichhave built on the spirit of the preamble, so that there is no sound analogy onwhich the law might be developed within the sense of what has beenrecognised to be charitable. Even without a political purpose exclusion,the conclusion in Molloy (that the purpose of the Society for the Protection ofthe Unborn Child was not charitable) seems correct. The particular viewpointthere being promoted could not be shown to be in the public benefit inthe sense treated as charitable.[200] The reference to Molloy is instructive.174 It is the most closely analogous casein New Zealand. It concerned the charitable status of the Society for the Protection ofthe Unborn Child which opposed the liberalisation of the law relating to abortion,the same position taken by Family First on that topic. Family First's objects are inmany respects similar to the objects of the Society in Molloy. For example,the Society's objects included "to encourage and promote study and research andthe collection and dissemination of information on the moral, medical, legal, politicaland social implications of pregnancy" and "to inform and educate the public onthe need for legal and other safeguards for protecting and preserving the rights ofunborn children".175 This Court found that the Society did not qualify for charitablestatus.176 As can be seen from the passage quoted above, Elias CJ, writing forthe majority, expressed the view that the outcome in Molloy appeared to be correcteven though the "political purpose" exclusion was no longer good law.172 Re Greenpeace of New Zealand Inc, above n 13, at [76] and [102].173 Re Greenpeace of New Zealand Inc, above n 13.174 Molloy v Commissioner of Inland Revenue, above n 16.175 At 692.176 At 697.[201] If the Society in Molloy would not qualify under the fourth head even afterGreenpeace, it is hard to see how Family First could do so. The parallels betweenthe objects of the Society and those of Family First are obvious. The majorityrecognise this but consider Family First's advocacy on these types of issues is notdisqualifying because of the "ancillary" carve-out.177 The majority says Family First's"engagement in the deliberations of the community on issues such as abortion,assisted death, anti-smacking laws, prostitution reform and censorship is properlycharacterised as part of its broader purpose of supporting marriage and family".178They say it is not "non-charitable activity of a more than ancillary nature" viewed"in the context of Family First's overall charitable educational and advocacypurposes".179[202] Three points should be noted about this. First, the majority appear to acceptthat Family First's advocacy on these issues is non-charitable (non-charitable but notmore than ancillary in nature). I agree with the non-charitable conclusion. Based onGreenpeace and Molloy, such advocacy does not qualify under the fourth head.Secondly, the majority do not explain how they arrive at their conclusion thatthis activity is no more than merely ancillary. Their conclusion seems to me to beseriously at odds with the evidence, including Mr McCoskrie's advice toCharities Services referred to at [195] above. Thirdly, I am unclear how advocacy onparticular issues could be said to be ancillary to an advocacy purpose.[203] The "more difficult issue" identified by the majority concerning "the extent towhich Family First has advocated over time for very specific issues of the day" is alsosaid to be embraced by the "ancillary" exception. Examples given of these "issues ofthe day" are Family First's opposition to the liberalisation of laws relating to divorce,prostitution, abortion, child-smacking, cannabis and euthanasia.180 It is notimmediately apparent how these "issues of the day", leading the majority to issuea cautionary warning to Family First,181 are distinguishable from those referred to177 Above at [176].178 At [164].179 At [168].180 At [169] and [175].181 At [176].above at [201]. Indeed, some of these "very specific issues of the day" feature in bothlists — abortion, euthanasia, anti-smacking and prostitution.[204] In summary, Family First's cause advocacy (promotion of its specificviewpoints) is not of self-evident or established public benefit such that it qualifiesunder the fourth head of charity. The majority appear to recognise this.In disagreement with the majority, I do not consider that Family First's advocacy onthese issues can be categorised as merely ancillary to some other charitable object.Rather, the evidence demonstrates that this forms an important part of its core purpose.Solicitors:Brace Legal, Porirua for AppellantCrown Law Office, Wellington for RespondentSue Barker Charities Law, Wellington for Charity Law Association of Australia and New Zealand asIntervenorAPPENDIX ONE:IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA574/2018BETWEEN FAMILY FIRST NEW ZEALANDAppellantAND ATTORNEY-GENERALRespondentAND CHARITY LAW ASSOCIATION OFAUSTRALIA AND NEW ZEALANDIntervenorCounsel: P D McKenzie QC and I C Bassett for AppellantP J Gunn and A P Lawson for RespondentJ J Batrouney QC and K G Davenport QC for IntervenorMinute: 29 October 2019MINUTE OF THE COURT[1] The purpose of this minute is to record the steps which are to be takenfollowing the hearing of this appeal:(a) The Attorney-General, in consultation with Family First, will preparea timeline of the consideration by the Charities Commission and theCourts of the question as to whether or not Family First qualifies forregistration as a charity. That timeline will cross-reference the relevantdecisions already in the bundle, and add any that are not. The timelinewill also include the delivery by Charities Services to the Commissionfrom time to time of the substantive reports that are already in thebundle, and any that are not.(b) Family First agreed to provide the letters of instruction (to use our ownphrase) that resulted in the preparation of the reports found in volume 8of the case that were not before the Charities Commission or theHigh Court in terms of the most recent decision. On reflection, weconsider that it would be appropriate that those documents be providedas annexures to an affidavit sworn on behalf of Family First, to beprovided as updating evidence confirming the arrangements thatresulted in the production of those reports, and the "true copy" statusof those commissioning documents. Family First will liaise with theAttorney-General before that affidavit is filed in Court. We note, byway of background, our understanding is those reports were bothcommissioned by, and paid for by, Family First. If that is not the case,the affidavit will no doubt reflect that.[2] In the circumstances, we do not think it is necessary to set a date by whichthose materials are to be provided. The parties will, we are sure, do so in a timelyfashion.[3] We also record our understanding that the material before us, not before theCommission or the Court below, may be treated as updating evidence admitted in thisappeal by consent, and may be relied on by us as such in reaching our substantivedecision.________________________Clifford JFor the Court