This week the final leg of our charitable status legal marathon will be in the Supreme Court in Wellington. The outcome in the Supreme Court will not decide whether we get charitable status. It will simply clarify further the definition of what a charity can be. Then, based on that, we can decide to re-apply to the Charities Registration Board to reconsider our application.
Here’s a bit of background. In 2005 the Government passed a new Charities Act, which meant all who considered themselves charities needed to apply to be registered. The Act is based on English law from the 1600s. We applied and were denied.
We applied because we considered ourselves charitable under the public benefit heading. There are some financial benefits as a registered Charity. But more importantly it is the narrow application of the definition of a charity that motivated us to apply in 2009. And this has been what has kept us challenging that definition up through the courts in the hope that it could be expanded so that it is more in keeping with the role that charities actually play in a 21st Century democracy.
The bones of contention that we will be arguing in the Supreme Court are whether political advocacy can be a charitable purpose. We have argued that engaging in policy debates on the issues charities work on is an essential part of what charities do today and is therefore in the public interest. If charities are threatened with losing their status simply because they advocate, this will have a chilling effect on any critical voices or debate from an important part of our society. And governments already seek the input of organisations working in the charitable sector on policy issues via Select Committees. In Australia political advocacy is recognised as a charitable purpose in its own right.
Political advocacy in our charities definition is only allowed if it is a secondary and not the primary purpose of a charity. But just how much advocacy puts you over the line is unclear. And who ultimately decides whether what is being advocated is in the public interest, the Charities board, the Courts, the government or the public?
The other issue we are appealing in the Supreme Court is whether illegal activities automatically disqualify you from charitable status. Of course breaking the law is not one of our purposes, but there are times when our activities have crossed the legal line and we have willingly taken the consequences. The current definition says it has to be ‘serious wrong doing’ and again it has to be secondary to our everyday activities.
Finally it is important to note that there is a difference between charitable status and donee status, although there is a connection. Donee status is administered by the tax department and it is what allows people to make tax deductible donations. Charitable status is what the Charities Registration Board decides and is what all the huff is about. Greenpeace already has donee status.
Having charitable status means that donee status is more assured although you still need to apply for it. However not having charitable status does not mean you lose donee status if you still fulfil the criteria for donee status.
I want to acknowledge the public benefit work that our lawyers have done pro bono in trying to contribute to a broader and clearer understanding in the law of the role of charities today.