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  • Greenpeace of New Zealand Incorporated Registration decision of the Charities Registration Board of New Zealand, 21 March 2018

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  1. Beware the charity regulator that asserts that it merely exists to enforce the law as an automaton. The application of the law is uncertain, even when there is a relevant case on the issue. Extensive discretions are at play as to the weighing of evidence in a particular matter, and persons of good faith can differ in their conclusion. The legal framework and outlook underlying a charity regulator’s decision making is not a value-free application of legal principles, but a fine balancing act of competing principles and factual assertions. This is why public trust in the regulator is so important if the regulatory process is to be seen as honest and honourable.
  2. Here is an example of the great contest between “purposes” and “activities”. When does an activity reach the point of becoming an unstated “purpose” of the organisation?[1] Another way of looking at the contest is that if the formal constitutional objects are charitable, the organisation is still charitable. It has merely strayed from its purpose. The primary task of the charity regulator is to restore the charities activities to sync with its formal purpose. Merely removing it from the charity register does little to protect charitable assets. The folly of a charity regulator that is chiefly an income tax guardian.
  3. The Charities Registration Board’s consideration of alleged activities of Greenpeace members that did not result in criminal convictions, in order to establish a purpose of the organisation having an illegal purpose by inference, is a slippery slope. Particularly as the convictions of individual members (note not the crimes of the organisation itself) was of minor scale being trespass, bill-sticking, disturbing a meeting and obstructing a public way. Commercial companies and their directors who commit criminal financial securities frauds are not stripped of their tax deductions. The regulator’s focus is on compensating victims, protecting assets for creditors and restoring orderly governance for the benefit of shareholders.
  4. This decision and any following litigation will be closely examined in the Anglo charity law jurisdictions where governments and uncivil society forces are seeking to curb public debate and challenge to the status quo. Is there a divergence of the approach in NZ and Australia given the NZ Supreme Court preference for the Kiefel J High Court minority decision in Aid/Watch?


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[1] Also called an “independent purpose” or an “ancillary purpose”.

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