FAMILY FIRST NEW ZEALAND [2018] NZHC 2273

FAMILY FIRST NEW ZEALAND [2018] NZHC 2273 [31 August 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-775[2018] NZHC 2273IN THE MATTER of an appeal under s 59 of the Charities Act2005 from a decision of the CharitiesCommission dated 21 August 2017AND IN THE MATTER FAMILY FIRST NEW ZEALANDAppellantHearing: 30 April – 1 May 2018Counsel: P McKenzie QC and Ian BassettP Gunn and M McKillop for the Charities Registration BoardJudgment: 31 August 2018JUDGMENT OF SIMON FRANCE J[1] Family First New Zealand (Family First) is an organisation founded on theprinciple that society is a better place if the traditional family unit is accorded primacyand support. It seeks to convince others of this viewpoint in various ways – productionof material, lobbying, organising themed conferences, seeking law change andgenerally taking any opportunity to have society move towards the model it favours.[2] Shortly after it was formed, Family First sought and obtained registration as acharity. This status has considerable tax benefits. To not have such a status is to placethe entity at a disadvantage in terms of pursuing public contributions.[3] Recently, following a reconsideration of Family First's purposes and activities,the Charities Registration Board (the Charities Board) decided to deregister it as acharity.1 It was decided Family First did not exist solely for charitable purposes, a keyrequirement for a charity.[4] This is the second deregistration decision the Charities Board has made inrelation to Family First. Its first decision2 was quashed due to the subsequent decisionof the Supreme Court in Re Greenpeace of New Zealand Inc.3 Prior to Greenpeacethere appeared to be a rule that political purposes were never charitable purposes,4 andthis had featured significantly in the Charities Board's initial deregistration decision.In Greenpeace, the Supreme Court rejected the proposition that advocacy or politicalpurposes were always non-charitable, holding instead that a case by case assessmentwas required. Accordingly, since the Charities Board had relied on the previous rule,the matter was referred back for reconsideration.5 The Charities Board has reachedthe same decision and Family First again appeals.6Relevant lawGeneral[5] Section 13 of the Charities Act 2005 (the Act) sets out the essentialrequirements for an entity to be registered as a charity. Under s 13(1)(a), in the caseof trustees of a trust, an entity qualifies for charitable registration if "the trust is of akind in relation to which an amount of income is derived by the trustees in trust forcharitable purposes".1 Deregistration Decision: Family First New Zealand (CC10094) Charities Board DecisionD2017-1, 21 August 2017 [2017 Deregistration Decision].2 Deregistration Decision: Family First New Zealand (CC42358) Charities Board DecisionD2013-1, 15 April 2013.3 Re Greenpeace of New Zealand Inc [2014] NZSC 105, [2015] 1 NZLR 169.4 See, for example, Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA); andKnowles v Commissioner of Stamp Duties [1945] NZLR 522 (SC).5 Re Family First New Zealand Inc [2015] NZHC 1493, (2015) 4 NZTR 25-014.6 The High Court when referring the matter back had provided guidance or observations on someissues. Family First read these observations as a blueprint for registration and so contends theCharities Board has not given proper weight to the decision. I observe, however, whatever theintentions of the first decision (which I doubt was as directive as Family First read it), the tasknow is to consider an appeal by way of rehearing from the current Charities Board deregistrationdecision.[6] Section 5(1) of the Act provides that a charitable purpose includes "everycharitable purpose, whether it relates to the relief of poverty, the advancement ofeducation or religion, or any other matter beneficial to the community".[7] The following passage from a recent article by Jane Norton provides a helpfulsummary of the key principles: 7Generally speaking, an organisation can be registered as a charity if itspurposes are exclusively charitable and it is for the benefit of the public. Acharitable purpose is one that falls under the four heads of charity: the reliefof poverty; the advancement of education; the advancement of religion; andany other matter beneficial to the community (Charities Act 2005, s 5(1)). Foran organisation to fall under the fourth head of charity – a purpose beneficialto the community – it must be sufficiently similar (but not necessarilyidentical) to a purpose previously accepted as charitable. An organisation'spurposes may be identified from its statement of objects or inferred throughits activities. A public benefit is one that is identifiable and defined and aimedat the general public or a sufficient section of it.[8] The need to establish both public benefit and charitable purpose, and the routeto establishing charitable purpose under the fourth head, were confirmed inGreenpeace:8The language and structure of s 5(1) make it clear that, although "any othermatter beneficial to the community" may qualify, the object must also be a"charitable purpose". The method of analogy to objects already held to becharitable is also the safer policy since charitable status has significant fiscalconsequences. Since the common law methodology is assumed inNew Zealand by the Charities Act, we consider that it would not beappropriate for this Court to abandon the analogical approach in favour of theview that benefit to the public presumptively establishes the purpose ascharitable.[9] Public benefit has two aspects – the purpose must be one the attainment ofwhich would be beneficial to the community, and it must benefit all of, or at least asignificant section of, the public.7 Jane Calderwood Norton "Controversial Charities and public benefit" [2018] NZLJ 64 at 64.8 Greenpeace, above n 3, at [30] (footnote omitted).Political purpose, advocacy, and Greenpeace[10] It had been a long-standing rule that if a primary purpose of an organisationwas political, that would preclude charitable status.9 This was because a charity'spurposes must be exclusively charitable, and political purposes are not charitable.This remains the law of England.10 When one understands political to not be limitedto the political party context, but to be a wider term covering advocacy for changes inlegislation or government policy, the roadblock is better understood as being that apurpose of advocating for change to the law or government policy,11 unless onlyincidental to the organisation's primary purpose, was not seen to be capable of beingcharitable.[11] The existence of a fixed non-charitable status for advocacy was potentiallyreflected in s 5(3) of the Act:12To avoid doubt, if the purposes of a trust, society, or an institution include anon-charitable purpose (for example, advocacy) that is merely ancillary to acharitable purpose of the trust, society, or institution, the presence of that non-charitable purpose does not prevent the trustees of the trust, the society, or theinstitution from qualifying for registration as a charitable entity.[12] In Greenpeace, however, the Court differed on the significance of the meaningof this provision. The minority considered the italicised words to be legislativeendorsement of the common law that advocacy, unless ancillary, was a non-charitablepurpose.13 This had been the approach taken by the Charities Board in its firstderegistration decision. By contrast, the majority considered that was reading toomuch into the subsection.14 Rather, its purpose was to make clear that non-charitableancillary purposes did not prevent charitable status. The majority held that advocacyand political purpose did not automatically prevent charitable status.9 The first New Zealand decision was Perpetual Trustees Estate and Agency Co of New ZealandLtd v League of Nations Union of New Zealand [1941] NZLR 1065 (SC).10 Bowman v Secular Society Ltd [1917] AC 406 (HL); McGovern v Attorney-General [1982] Ch321; and Southwood v Attorney-General [2000] EWCA Civ 204. For a discussion see JulietChevalier-Watts "Shedding the shackles of Bowman: A critical review of the political purposedoctrine and charity law in New Zealand" [2015] NZLJ 108.11 Indeed, advocating for the status quo was similarly regarded asnon-charitable: Molloy, above n 4.12 Emphasis added.13 Greenpeace, above n 3, at [124].14 At [55]–[58].[13] Greenpeace took place against the backdrop of the High Court of Australiadecision in Aid/Watch Inc v Commissioner of Taxation.15 There the High Court hadalso rejected the political purpose doctrine. Indeed, the majority held the opposite,namely that advocacy could in itself be a public benefit to the extent that it generatedpublic debate and thereby enhanced the democratic process. Charitable status couldthereby be established without the need to show that the goal being advocated for, ifachieved, would be a public benefit. While agreeing on the rejection of the politicalpurposes exception, the majority in Greenpeace did not accept this secondproposition:16Although, for the reasons given, a political purpose exclusion isinappropriately conclusive when considering charitable purpose, we considerthat the promotion itself, if a standalone object not merely ancillary, must itselfbe an object of public benefit or utility within the sense used in the authoritiesto qualify as a charitable purpose. As indicated above at paragraphs [59] to[71], such public benefit or utility may sometimes be found in advocacy orother expressive conduct. But such finding depends on the wider context(including the context of public participation in processes and human rightsvalues), which requires closer consideration than has been brought to bear inthe present case.[14] Concerning examples of advocacy that are charitable, the Supreme Courtobserved:17[71] Just as promotion of the abolition of slavery has been regarded ascharitable, today advocacy for such ends as human rights or protection of theenvironment and promotion of amenities that make communities pleasant mayhave come to be regarded as charitable purposes in themselves, depending onthe nature of the advocacy, even if not ancillary to more tangible charity. Thatresult was looked to as one that might well come about in relation to protectionof the environment by Somers J in Molloy. In the present case the Board hasaccepted that Greenpeace's object to "promote the protection and preservationof nature and the environment" is charitable. Protection of the environmentmay require broad-based support and effort, including through theparticipatory processes set up by legislation, to enable the public interest to beassessed. In the same way, the promotion of human rights (a purpose of theNew Zealand Bill of Rights Act 1990, as its long title indicates) may dependon similar broad-based support so that advocacy, including throughparticipation in political and legal processes, may well be charitable.15 Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42, (2010) 241 CLR 539.16 Greenpeace, above n 3, at [103] (emphasis added).17 Greenpeace, above n 3 (footnotes omitted).[15] Finally, however, and perhaps counterbalancing the gains advocacy groupsmay have sensed Greenpeace represented, is the following passage, the last sentenceof which reinforces that the generation of public debate is not enough – the underlyingpurpose or cause of an entity must both be charitable and in the public benefit:18[73] Advancement of causes will often, perhaps most often, be non-charitable. That is for the reasons given in the authorities – it is not possibleto say whether the views promoted are of benefit in the way the law recognisesas charitable. Matters of opinion may be impossible to characterise as ofpublic benefit either in achievement or in the promotion itself. Thus inAid/Watch, Kiefel J held that "reaching a conclusion of public benefit may bedifficult where the activities of an organisation largely involve the assertion ofits views". She concluded that Aid/Watch had failed to establish that the viewsit asserted were correct and would in fact promote the delivery of aid.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, theconclusion in Molloy (that the purpose of the Society for the Protection of theUnborn Child was not charitable) seems correct. The particular viewpointthere being promoted could not be shown to be in the public benefit in thesense treated as charitable.[16] From all these passages, there emerges several matters of particular relevanceto this case. First, examples are given of purposes, the very advocacy for which willbe regarded as charitable – namely the promotion of human rights and the protectionof the environment. They are assessed as both being in the public benefit, andanalogous to a cause previously recognised as charitable – the abolition of slavery. Itfurther emerges from these passages that these occasions where advocacy is itself acharitable purpose are likely to be rare, and finally an example is provided of whenadvocacy will not be charitable – Molloy v Commissioner of Inland Revenue.19[17] Molloy concerned the charitable status of the Society for the Protection of theUnborn Child. The main purpose of the organisation was to lobby against mootedchanges which would relax abortion laws. The Society sought to maintain thelegislative status quo. This purpose was characterised as a political object andtherefore not charitable as the law as then understood. Advocating for a legislativestatus quo could not sensibly be classified as different from advocating for a law18 Footnote omitted.19 Molloy, above n 4.change, an activity consistently regarded as failing the public benefit limb of thecharitable status inquiry. The Court of Appeal in Molloy observed:20But we are unable to accept that either their expressed reasoning or anyimplications to be drawn from them convey the present case to the terminuswhich the taxpayer must reach – that is that the public good in restrictingabortion is so self-evident as a matter of law that such charitable prerequisiteis achieved. The issue in relation to abortion is much wider than merely legal.And the fact, to which we have already referred, that this public issue is oneon which there is clearly a division of public opinion capable of resolution(whether in the short or the long term) only by legislative action means thatthe Court cannot determine where the public good lies and that it is relevantlypolitical in character.[18] As noted the Supreme Court in Greenpeace considered the outcome in thiscase to remain good law, as it was not possible to demonstrate public benefit. Againstthat background it is necessary to consider the purposes of Family First in more depth.Analysis of Family FirstPolicies and principles[19] The objects of Family First are set out in the Trust Deed:A To promote and advance research and policy supporting marriage andfamily as foundational to a strong and enduring society.B To educate the public in their understanding of the institutional, legaland moral framework that makes a just and democratic societypossible.C 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 academics.D To produce and publish relevant and stimulating material innewspapers, magazines, and other media relating to issues affectingfamilies.E To be a voice for the family in the media speaking up about issuesrelating to families that are in the public domain.F To carry out such other charitable purposes within New Zealand asthe Trust shall determine.20 At 697.[20] In elaboration of these objects, Charities Services provided the Charities Boardwith a summary of Family First's policies and principles, sourced primarily fromFamily First's websites. Although Mr McKenzie QC was critical of some of thematerial sourced from the internet that was placed before the Court, he accepted thatthis summary was before the Charities Board in its decision-making process. It isproperly part of the material to be considered.[21] Family First promulgates a list of priorities and principles that guide itsadvocacy in pursuit of the objects. Its stated priorities are:21(a) promoting marriage and family;(b) promoting life; and(c) promoting community values and standards.[22] In relation to family and marriage, Family First promotes the traditional viewof family, and seeks to limit the concept of marriage to a union between men andwomen. It seeks to have the tax and welfare system amended "to eliminatedisincentives" to marriage.22 It also advocates for the abolition of no fault divorce,and seeks to return the law to a situation where there is an onus on the person seekingto end the marriage.[23] Family First believes stay at home parents are discriminated against, and seeksto encourage changes to enable parents to spend time with children. It also wishes toamend the law to allow "light smacking".23 Other topics addressed under marriageand families include punishment for child abuse, a Ministry for Families, familyeconomics, aged care, and sex education.21 "Family Policy Priorities" Family First New Zealand <www.familyfirst.org.nz>.22 "Policy Priorities", above n 21.23 "Policy Priorities", above n 21.[24] Family First has released a set of detailed principles on family. The principlesare sourced in a document developed by the World Congress of Families, entitled "TheNatural Family: A Manifesto":24(a) We affirm the intergenerational family as fundamental to society.(b) 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 binding thegenerations.(c) The natural family cannot change into some new shape; nor can it bere-defined by social engineering.(d) We affirm that the natural family is the foundational family system,but we acknowledge varied living situations caused by circumstanceor dysfunction.(e) We acknowledge the tremendous contribution made by single,adoptive and step-parents and extended whanau in society. We wishto ensure they receive appropriate levels of assistance, withoutdenying the clear empirical evidence that the best environment inwhich to raise children is the biological two-parent, husband-wifefamily.(f) We affirm the marital union to be the authentic sexual bond, the onlyone open to the natural and responsible creation of new life.(g) 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.(h) We affirm that the natural family is prior to the state and that the taskof government is to shelter and encourage the natural family.(i) 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.(j) 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.24 "Principles on Family" Family First New Zealand <www.familyfirst.govt.nz>, adapted fromDr Allan Carson and Paul Mero "The Natural Family: A Manifesto" (2007) World Congress ofFamilies IV <www.worldcongress.pl>.[25] There is a similar list of principles for marriage, the underpinning of which isthat marriage consists of a permanent union of man and woman, which whenfunctioning correctly delivers numerous benefits to society. A further core propositionis that the traditional marriage is the best model for delivering such benefits.[26] The second broad policy heading is promoting life. Under this, law change issought to prevent abortion. Further, any law change to allow for euthanasia isopposed. The third major priority is promoting community standards and values.Under this priority, the areas of focus are amendment of the Prostitution ReformAct 2003, reducing access to pornography and increasing the difficulty for children toaccess pornography, and advocating for a more family focused (rather than individualrights) approach to censorship.Activities[27] The list of areas concerning which Family First has been active consists ofabortion, euthanasia, parent time with children, punishment of and publicity ofoffending against children, prostitution, gambling harm, pornography, censorship,marriage and alcohol reform.[28] Family First has produced a number of booklets on topics associated with itsprinciples. The pieces are written by persons with qualifications in the area, some ofwhom hold down academic posts. They are commissioned pieces in the sense thatFamily First has asked the author to write the piece. Topics include Young People andAlcohol; Mothers, Daycare, and Child Wellbeing; Sexuality Education inNew Zealand; Media Use: An emerging factor in child and adolescent health; MakingSense of the Confusing New World of Gender Identity; and Euthanasia. The style ofthe publications varies, but generally they advance a particular viewpoint, gatheringtogether existing research in support. They are informative to those without particularknowledge of the research in an area, but do not purport to summarise competingresearch or offer new research.[29] Many of the authors have considerable status. Some examples suffice. Theauthor of the 31 page booklet on Young People and Alcohol is Dr Aric Sigman. He isa Fellow of the Society of Biology, and an associate fellow of the British PsychologicalSociety. He has addressed a working group of the European Parliament studying theimpact of media on children. One of his books won the Information Book Awardproffered by The Times Educational Supplement. Dr Sigman is also the author of thebooklet on Mothers, Daycare and Child Wellbeing. Concerning the publication onGender Identity, Glenn Stanton is the author of seven books in the area. He is adirector at a Family Institute in Colorado. There would seem little doubt he iscommitted to similar principles as underpin Family First. The author of thepublication on euthanasia is Rex Ahdar who holds a Chair in Law at the University ofOtago. He is published and taught widely in many areas, including two texts publishedby Oxford University Press – Religious Freedom in the Liberal State, and Shari'a inthe West.[30] Finally, it can be observed one of the publications is commissioned researchundertaken by the New Zealand research and consulting body, NZIER.25 The aim ofNZIER is to be the premier centre of applied economic research in New Zealand. Thepaper addresses the financial benefits of marriage, and the financial cost of familybreakdown. It represents original research.[31] Family First also hosts an annual forum on the family. Its purpose is togenerate discussion on whatever theme it takes. Across the years the forums havevaried in the speakers proffered – some have consisted primarily of persons similar tothose who have authored some of the publications. By that I mean persons with asound publication record, some of whom hold or have held academic posts but whoseresearch and writing in this area can be said to reflect a commitment to a particularviewpoint. That is not intended to devalue the work, but to merely describe it. Onother occasions, such as in an election year, the forum has brought together speakersof significant seniority from political parties.[32] Finally, it can be observed that it appears from the material that Family Firstoften produce short opinion pieces on topics and lobby for law change. The exactdetail of that is not apparent but this generalised description suffices.25 NZIER The value of Family: Fiscal Benefits of Marriage and Reducing Family Breakdown inNew Zealand (Family First New Zealand, October 2008).Deregistration decision[33] The Charities Board concluded Family First did not advance exclusivelycharitable purposes:26The Board considers that Family First has a purpose to promote its ownparticular views about marriage and the traditional family that cannot bedetermined to be for the public benefit in a way previously accepted ascharitable. Family First has the freedom to continue to communicate its viewsand influence policy and legislation but the Board has found that FamilyFirst's pursuit of those activities do not qualify as being for the public benefitin a charitable sense.[34] The Board identified a three-step process taken from a recent High Courtdecision, Re The Foundation for Anti-Aging Research and the Foundation for theReversal of Solid State Hypothermia:27(a) whether Family First's stated purposes are capable of being charitable;(b) whether Family First's activities are consistent with or supportive of acharitable purpose; and(c) if Family First's activities are found not to be charitable, whether theiractivities can be said to be merely ancillary to an identified charitablepurpose.[35] It then asked these questions in relation to the two heads of charity on whichFamily First rely under s 5(1) of the Act – the fourth head of beneficial to thecommunity and the third head of advancement of education.[36] Concerning the fourth head, the most prominent analogous area previouslyheld to be charitable was promoting the moral and mental improvement of society.Collins J in the first appeal decision had indicated there was force in the propositionthat advocating for the traditional family is analogous to other bodies held to haveadvocated for the mental and moral improvement of society.28 The Board identified26 2017 Deregistration Decision, above n 1, at [2].27 Re The Foundation for Anti-Aging Research and the Foundation for the Reversal of Solid StateHypothermia [2016] NZHC 2328 at [88].28 Re Family First, above n 5, at [87].three classes of case under this area –the temperance cases, the ethical or philosophicalsystems cases and the advocacy cases. Each was then distinguished.[37] The temperance cases, having been identified as a group of moral improvementdecisions, were in effect reclassified by the Board as being better seen as examples ofadvancement of religion, advancement of education, or promotion of public health inthe sense of relieving addictions.29 It was also noted there were tangible benefitsassociated with the purposes in those cases, such as the provision of facilities.[38] Concerning the philosophical or ethical systems cases,30 it is accepted thatFamily First has an ethical philosophy. However, its primary activity was noteducating on the philosophy:31but advocating its own point of view on issues it considers will promote andprotect marriage and its definition of the traditional family. The Board doesnot consider that adopting an ethical philosophy, as then using it to advocateon specific positions is consistent with the public benefit promoted in theethical or moral philosophical systems line of cases.[39] The third group of cases were those concerning advocacy.32 The Board, whilerecognising the change Greenpeace had initiated,33 placed weight on the SupremeCourt's comments on the on-going correctness of the Molloy decision. The Boardconcluded that similarly Family First's advocacy concerned advocacy on issues wherethere were two sides to an argument on a topical social issue, neither of which can bedetermined to be for the benefit of the public.[40] Concerning the advancement of education, the Board concluded that anorganisation that promotes a cause, as opposed to advancing education objectively, isnot advancing education within the charitable meaning. Likewise, if it isdisseminating research solely to advance a point of view, then advancement ofeducation is not established. Rather the point of view itself must advance a public29 These cases included Re Hood [1931] 1 Ch 240 (CA); Re Scowcroft [1898] 2 Ch 638; andCommissioner of Inland Revenue v Falkirk Temperance Café Trust [1927] SC 2651 (Scot).30 Re Price [1943] 1 Ch 422; Re South Place Ethical Society [1980] 1 WLR 1565 (Ch); and Re theGrand Lodge of Antient Free and Accepted Masons in New Zealand [2011] 1 NZLR 277 (HC).31 2017 Deregistration Decision, above n 1, at [28].32 Molloy, above n 4, Aid/Watch, above n 15; Knowles, above n 4, and National Anti-VivisectionSociety v Inland Revenue Commissioners [1948] AC 31 (HL).33 Greenpeace, above n 3.benefit in the charitable sense, at which point one returns to the fourth head ofcharitable purpose analysis. The Board concluded:34[43] The Board considers that in order for a purpose to advance education,the information must be presented in a balanced, objective and neutral manner,so that the reader can form a view themselves, rather than expressing one-sided perspective intended to persuade the public to a particular point of view.To summarise the relevant case law, in order to determine whether the researchreports seek to promote Family First's point of view, or advance genuine,objective educational research, the appropriate areas of analysis are:a. the nature of the research to determine whether if it is objective,neutral and balanced;b. whether it has been reviewed by objective third parties; andc. how Family First disseminates its views to the public, to determinewhether it seeks to educate or persuade to a point of view.[41] Family First's publications were analysed. Of the reports considered, only thatbased on the research by NZIER was considered capable of advancing education. Itfailed, however, because of the way the report was presented to the public by FamilyFirst:35[50] Although the Board accepts that the NZIER report is capable ofadvancing education, the Board does not accept Family First advanceseducation through the report. As with the other reports, the media releaseaccompanying the report does not present the results objectively, and insteaduses them in a manner that advances Family First's views. Further, FamilyFirst does not acknowledge the gaps in research.Appellant's submission[42] Family First submits the Charities Board has wrongly applied Greenpeace andhas ignored guidance provided by Collins J when referring the matter back. It issubmitted that whilst noting the removal of the political purposes exception, theCharities Board has in effect reintroduced it. It is further submitted there is evidenceon which a conclusion of public benefit can be reached:(a) the evidence shows the focus of Family First's activities is on advocacyfor strengthening families, promoting life and community values;34 Footnote omitted.35 2017 Deregistration Decision, above n 1 (footnote omitted).(b) the centrality of the family to a healthy society is recognised in severalinternational instruments to which New Zealand is a party; and(c) New Zealand domestic legislation also supports the central andbeneficial role of the family in society. An example given is theFamilies Commission Act 2003.36[43] Family First recognises, I consider correctly, that the sticking point itencounters is its promotion of and advocacy for one view of family, that which it callsthe traditional family. It is, however, submitted that promotion of the traditional familydoes not preclude the charitable status that would undoubtedly attach to a purpose ofpromoting the role of family in society.[44] First, it is noted that the model supported by Family First is not individualisticto Family First but is termed the traditional model for good reason. It was for a longtime the definition of marriage in legislation and human rights documents refer to "thenatural family". It is therefore incorrect to critique Family First's model as being aproduct of its conservative Christian underpinnings. Its purposes are to promote amodel of society which has in the past been seen as desirable, a label which empiricalevidence supports.[45] Family First submits there is broad-based support for its model. It accepts it isnow a controversial position, but as is emphasised in Greenpeace, the fact that apurpose is controversial is not an automatic impediment to charitable status.Reference is made to s 29 of the Marriage Act 1955 which allows ministers to declineto solemnise a same sex marriage. This is submitted to reflect that there is more thanone view, and charitable status should not be denied because a body advocates for oneof those views. It is noted that Family First works within the changed environmentthat now exists and promotes the status of family generally as well as maintaining itspromotion of one version.36 This Act has now been repealed as at 30 June 2018 by s 7 of the Families Commission RepealAct 2018.[46] Family First also challenges the decision on advancement of educationsubmitting that the Charities Board unfairly undervalued its research and publicationsbecause those publications were commissioned. It is submitted the purpose is toadvance knowledge and understanding, and there was no reason to go behind thepresumption of public interest.[47] Mr Bassett who argued this aspect went further and submitted that there wasno basis to go behind the purposes as set out in Family First's deed. They were clearand accordingly reference to matters such as the entity's activities was not required.The purposes made it clear Family First exists to educate, and that is sufficient.Decision[48] Family First's primary activity is advocacy for a specific viewpoint. It giveseffect to this purpose in many ways, including the holding of an annual conference (towhich one must be invited) and publishing material that contains opinion andinformation supportive of its viewpoint. But in a broad sense advocacy is all it does.Any public benefit is not tangible. Despite originally being registered, in my view,without the recent removal of the advocacy exclusion, it does not meet the test forcharity.[49] Greenpeace opens the door to charitable status to the extent that the purposesof any organisation seeking charitable status must be examined, whether or not thosepurposes are to advocate for something. Whether, however, Greenpeace will lead todifferent outcomes is doubtful. Passages have already been cited in which the majoritynoted the difficulty still confronting advocacy organisations.37 Likewise, the minorityin Greenpeace observed that because of the on-going need to establish public benefit,the majority's approach "is not much different" from one which simply excludesadvocacy.38 The point being that after the analysis, it is very likely one will still get tothe same point.37 At [8]–[10] of this judgment.38 Greenpeace, above n 3, at [126].[50] If one returns to the judgment of Lord Simonds in National Anti-VivisectionSociety v Inland Revenue Commissioner, his Lordship anchors charities law rejectionof trusts created for the purpose of changing the law in the inability of the Court to saywhether a proposed change in the law will or will not be for the public benefit.39Greenpeace opens this door to allow such organisations to try and establish publicbenefit, but the formidable, almost impossible, nature of the task remains unchanged.The examples proffered of protection of the environment and advancement of humanrights serve more to illustrate the nature of the task than provide encouragement.[51] The criticism Family First makes of the Charities Board is that its approachseems to ignore Greenpeace. I do not consider that is a fair assessment; the CharitiesBoard undertook the analysis now required. The familiarity of its reasoning andoutcome merely reflected the reality that establishing a public benefit has always beenthe hurdle for those whose primary purpose is solely to promote a cause, and still is.[52] Mr McKenzie focused on the distinction between promoting the role of familyin society, and promoting one form of family. He submitted the former would achievecharitable status, and then reasoned from that what is a narrower focus should notchange the outcome. I accept there is a strong case for saying that promoting the roleof family in society would be charitable. The areas identified in Greenpeace –protection of the environment and promotion of human rights – are high level andwidely accepted goals (at least in New Zealand). That said, there would be still muchwithin those goals that is disputed; for example, what threatens the environment andhow it is to be best protected. Within those high end goals held by the Supreme Courtto be charitable, the particular advocacy focus of an organisation could neverthelessbe for a point of view that is subject to debate, and concerning which the specificachievement may not be able to be shown to be in the public interest. The point is thatsome level of controversy in an organisation's purposes, and arguably an inability todefinitively conclude which side of the controversy is correct, would not seem toprevent an assessment of public benefit.39 National Anti-Vivesection Society, above n 32, at 62.[53] Could promotion of the family unit as a crucial component of a healthy societybe regarded in the same way as protection of the environment? The followingstatements from international treaties provide a powerful starting point in favour ofthe proposition. First:40(1) 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.And next:41The 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 for thecare and education of dependent children. Marriage must be enteredinto with the free consent of the intending spouses.[54] And finally:42The 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,[55] Each of these important international documents recognises the centrality offamily to society, and declare it to be the natural environment for child raising.40 Universal Declaration of Human Rights GA Res 217A (1948), art 16 (emphasis added).41 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened forsignature on 19 December 1966, entered into force 3 January 1976), art 10 (emphasis added).42 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990), preamble (emphasis added).[56] Domestically, Family First points to the now repealed Families CommissionAct 2003 which established a Families Commission with an advocacy function whichincluded the obligation:43(b) to increase public awareness and promote better understanding ofmatters relating to the interests of families, for example, the followingmatters:(i) the importance of stable family relationships (including thosebetween parties to a marriage, civil union, or a de factorelationship); and(ii) the importance of the parenting role; and(iii) the rights and responsibilities of parents:[57] Leaving to one side any attempt to limit the definition of family, I consider apurpose of promoting the benefits of a stable family unit for society would likely becharitable. One of the research pieces commissioned by Family First was a study byNZIER into the fiscal cost to society of family breakdown and decreasing marriagerates.44 It is independent, peer reviewed research that makes a case to say the cost maybe upwards of $1 billion a year. The report notes that its conclusions are necessarilybased on a number of assumptions but it is an item of evidence supporting a publicbenefit claim. Many working in areas such as the criminal justice sector would alsono doubt attest to the obvious societal cost when children and young people are notraised in a supportive environment. Indeed, the statements cited from the variousinternational documents appear to come from an unarticulated recognition of that costto society when the family unit breaks down. It follows therefore that if Family First'spurposes were solely to promote the role of the family, there would be considerablestrength to its claim for charitable status.[58] It is well recognised that in determining charitable status, it is necessary toidentify the true purpose of an organisation.45 It is a question of fact. It may involvegoing beyond the objects in a trust deed. Disputing this, Mr Bassett referred toobservations in Re The Foundation for Anti-Aging Research and (FAAR) advising43 Families Commission Act 2003, s 8(1)(b) (emphasis added).44 NZIER, above n 25.45 Commissioner of Inland Revenue v Medical Council of New Zealand [1997] 2 NZLR 297 (CA) at318 and 319; and Molloy, above n 4, at 693.caution about going behind the stated purposes of an organisation.46 In particular, itwas noted in FAAR that activities were only evidence of charitable purpose and neednot themselves be charitable. The fundamental purposes of an organisation remain theproper focus.[59] FAAR concerned an appeal declining charitable status. In the context of acharitable status application, pursuant to s 18(3) of the Act, the Chief Executive is tohave regard to the entity's activities at the time of registration. By contrast, the presentcase involves deregistration. The first ground for deregistration is that the entity nolonger qualifies for the status.47 To support this inquiry, s 50 of the Act authorises theChief Executive to require information from the entity about its activities. At least inthe context of a deregistration occurring because an organisation is no longer to beregarded as charitable, a focus on its activities since initial registration seemsinevitable and proper. Most often the purposes, initially held to be charitable, will nothave changed. It cannot be that an inquiry into whether the entity is still pursuingthose charitable purposes can be constrained in the evidence able to be considered. Tobe charitable an entity must exist exclusively for charitable purposes, both initially andcontinuously.48 Non-charitable activity is permissible only if such activity is ancillaryto the core charitable purposes.49[60] Returning to the true purpose issue, I understand it is accepted by Family Firstthat its purpose is to promulgate a singular view of family, called the traditional family.If I misunderstood this concession, I conclude it is the case, and plainly so, that FamilyFirst's purposes are first and foremost to promote the traditional family unit. Whilethat expression does not appear in the objects, it is legitimate to explore the meaningof the terms that are used in the Deed – "marriage" and "family". Family First'sprinciples on family and marriage (see [18 to [19] above) make the meaning of theseterms plain. Marriage describes the permanent union of a man and a woman. Thetraditional family unit consists of the children of that union, and the married parents.There is no doubt the main purpose of the entity is to promote the traditional family46 Foundation for Anti-Aging Research, above n 27, at [82]–[87].47 Charities Act 2005, s 32(1)(a).48 Sections 13 and 5.49 Section 5(3) and (4).unit. Family First has other purposes, some of which may be fatal to the application,but I consider it appropriate to address the charitable status of this primary purpose.[61] Further, to its submissions on the centrality of family, and in support of itscontention for the charitability of its core purpose, Family First places weight on thelabel "traditional", claiming it is a correct description of the model for which FamilyFirst advocates. It points out that until recently the Marriage Act defined marriage thatway, and submits there is no evidence to suggest a large section of the community donot still see marriage and family in the way Family First does. Whilst it isacknowledged the formal law may have moved on, it is submitted charitable statuscannot be so tightly tied to the views of the particular day. Further, as Greenpeacemade clear, that the views may be controversial to some does not matter.50 Finally, itis noted the NZIER research points to the superiority of the traditional unit.51[62] Addressing first this research, I accept there are conclusions in the researchsupportive of Family First's view, but as the authors acknowledge, there are cautionsbecause of the lack of data, and the consequent need for assumptions. Within thatresearch, now ten years old, there is also information that would seem to run counterto Family First's claims. For example, it is noted that the rate of marriage per 1000persons over 16 years declined from a high in 1971 of 45.5 per 1000 to the latest figurethen available of 13.7 per 1000 in 2007.52 Those figures tend to at least raise doubtsabout a claim that marriage is still widely regarded as a cornerstone of the family unit.[63] It is necessary to look at the outcome that Family First seeks. Based on itspriorities and principles statement, it can be said Family First seeks recognition of thepre-eminence of the traditional family unit, and a legislative framework that supportsand protects that unit, including making divorce more difficult. If that description iswidened to encompass all Family First's key priorities, it can be added that FamilyFirst advocates for changes to legislation concerning smacking, abortion, censorshipand prostitution.50 Greenpeace, above n 3, at [75]–[76].51 NZIER, above n 25.52 At [2.1].[64] The evidence does not establish that the achievement of these goals would bea benefit to the community in the sense required by charity. In relation to marriage,Family First's model, to the extent it involves law change favouring the traditionalfamily unit, would on its face run counter to human rights law which prohibitsdiscrimination on such bases.53 Unless able to be shown to be a reasonable limit,54 theposition advocated for would be unlawful, an obstacle to charitable status.55 Further,whilst there may be a cost to society – both fiscal and social – in divorce, the evidencepresented does not attempt to address the other side, namely the cost to families andsociety of making the divorce process more difficult and costly, and of reintroducingblame as a key feature.[65] I accept that some or many may agree with aspects of Family First's position,but just as controversy is not a block, nor is the fact that a significant number agreewith its position a pathway to charitable status. The narrow issue in these advocacycases is whether a body whose main or indeed sole function is to promote a viewpointis a charity. The advocacy cases where charitable status has been acknowledged arescarce, and seem increasingly limited to purposes of almost universal acceptance.Here, it cannot be shown that Family First's promotion of the traditional family unit,though no doubt supported by a section of the community, if achieved would be apublic benefit. If it is achieved at a cost to other family models, it could affirmativelybe said not to be in the public interest.[66] There are further obstacles to Family First's charitable status. Family Firstacknowledges one of its major priorities is to promote life, by which it means toadvocate for a lessening of access to abortion and for rejection of any legislationenabling assisted death. The decision in Molloy, affirmed in Greenpeace, means thesepurposes are not charitable.5653 Marital status is a prohibited ground of discrimination under s 21(1)(b) of the Human Rights Act1993.54 Catholic Care (Diocese of Leeds) v Charity Commission of England and Wales (No 2) [2012]UKUT 395 (TCC), [2013] 1 WLR 2105.55 National Anti-Vivisection Society, above at 32.56 Molloy, above n 4; affirmed in Greenpeace, above n 3, at [73].[67] Molloy cannot be distinguished in the way Family First suggests. Family Firstseeks to attach significance to the fact that the organisation in that case was seeking touphold the status quo, whereas Family First advocates for change. This is not adistinction of significance – in terms of charitable status it logically makes nodifference whether the advocacy is for a change in the law or resisting a change in thelaw. One would think public benefit easier to establish when the purpose was to upholdan existing law which has at least had the endorsement of the legislature at the time ofenactment, but that did not assist in Molloy.[68] Similar concerns can be raised about the other law changes which Family Firstpromotes – the anti-smacking laws, the prostitution reform laws, and censorship laws.Each area plainly engages the difficulties that those seeking charitable status for theiradvocacy must confront – how to establish a public benefit in either the outcome oradvocacy. The first two of these law changes are comparatively recent law changesand followed significant public debate. That is of course not to say organisationscannot continue to press a contrary view, but advocating for repeal or change is veryunlikely to be regarded as in the public benefit in the sense used by charity.Accordingly, irrespective of the conclusion on the core purpose, I consider these otherpurposes are not charitable and therefore prevent that status being held by Family First.The advancement of education[69] Family First contends that the Trust's purposes, as stated in the Deed, place astrong emphasis on research, and on the provision of social analysis and debaterelating to and affecting the family. The Charities Board held that with the exceptionof the NZIER research, the publications had the purpose of merely promoting FamilyFirst's views and therefore did not qualify as education.[70] It is not necessary to address this issue in detail. Even if there was an educativeaspect that qualified as charitable, as discussed it is not Family First's only purpose.The preceding discussion makes it plain Family First also advocates for law change ina variety of areas, some of which were at best contestably for the public benefit andsome which authoratively are not. These other purposes, and the activities consequentupon them, cannot sensibly be seen as ancillary to any education purpose. Indeed, thereality is the opposite; such education as is undertaken is to persuade people to FamilyFirst's point of view and thereby garner support for its efforts to effect change. Despitecontrary inferences that could be drawn solely from a perusal of the Trust objects, anyeducative purpose of Family First is in fact ancillary to these non-charitable advocacyaims.[71] Although a different way of expressing it, the same assessment of the purposeof the publications underlies the Charities Board's rejection of charitable status underthis head. The bulk of the papers do not constitute research; rather they advance acoherent viewpoint, buttressed by citation of published material. Such a descriptiondoes not necessarily exclude the publication from meriting an education label, but thecontext is important. Leaving to one side the NZIER report, the body of workproduced by Family First over 11 years can be taken to represent the best evidence tosay this Trust is for the advancement of education. The publications, however, are allwritten with the same viewpoint. I accept the credentials of some of the authors, butas a body of work it cannot be seen as other than a series of publications promoting acause. It has long been recognised this does not qualify for the advancement ofeducation in a charitable sense.57[72] I accordingly agree with the conclusion of the Charities Board on this head ofcharity, although not with all of its reasoning. I consider the Board's analysis delvedtoo much into an assessment of the merits of the publications. Other than a cursorycheck to ensure the published material is not nonsense, it is not the Board's task toassess the quality of the educative material. An illustration of this misfocus was theemphasis the Board placed on the absence of peer review.[73] Finally, I observe Family First's reliance on the NZIER piece is misplaced. Itis an example of sound research and therefore its promulgation is undoubtedly for theadvancement of education. But it is one piece within a collection and cannot alter theoverall characterisation of the publishing activity and what it says about Family First'spurposes.57 Re Collier (Deceased) [1998] 1 NZLR 81 (HC) at 91.Conclusion[74] The appeal is dismissed. Family First has not satisfied me the Charities Boarderred in its conclusion. Its core purpose of promoting the traditional family unit cannotbe shown to be in the public benefit in the charitable sense under the Act. Further, ithas other purposes some of which have previously been held to be non-charitable, andthe rest of which present a weaker public benefit argument than the core purpose.Regardless of the charitable status of the core purpose, these other purposes preventregistration. Finally, the publication work of Family First is merely a method ofpresenting its advocacy to the public. It is not educational in the charitable sense.[75] I did not hear from the parties re costs. Memoranda may be filed if required.__________________________Simon France J