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Court of Appeal overturns decision denying charitable status to a trust

1 Dec 2023

| Author: Vivian Mitchell

Charities Act 2005 – charitable status – charitable purpose – trusts as charitable entities – ancillary non-charitable purposes

Better Public Media Trust v Attorney General [2023] NZCA 553 per Courtney, Collins and Katz JJ.

 

In Better Public Media Trust v Attorney-General, the Court of Appeal (CA) overturned a High Court decision and recognised Better Public Media Trust (BPMT) as a charity.

BPMT applied to be a charity under the Charities Act 2005. The Charities Registration Board (CRB) refused BPMT’s application and the High Court upheld the decision. The HC found BPMT’s objectives were non-beneficial to the community under s 5(1) of the Act.

BPMT’s objectives were to:

  • advance public media in New Zealand;
  • promote the role of public media in educating, informing and entertaining New Zealanders;
  • promote informed debates about public media issues;
  • support improved access to funding, operating conditions and platforms of distribution for use by public media providers,
  • represent and advance the interests of media audiences; and
  • undertake other activities that are likely to further the charitable purposes of the trust.

BPMT’s definition of “public media” encompassed public interest, non-profit, publicly-owned, independent and non-commercial media forms.

Legal reasoning
The Court of Appeal considered updated evidence on BPMT’s activities since its application to the CRB.

The court emphasised that trusts need not be established for charitable purposes. It suffices that trust funds are applicable for charitable purposes, as established in Latimer v Commissioner of Inland Revenue [2004] UKPC 13.

Upon reviewing provisions of the Act, the court affirmed that charitable status is not forfeited when a non-charitable activity is undertaken ancillary to a charitable purpose.

When exploring the meaning of “charitable purpose” under s 5(1), the court focused on case law on the distinction between political and charitable purposes. The court affirmed that advocacy itself was not excluded from charitable activity and neither was the promotion of a charitable purpose by advocacy.

The Court of Appeal found that “public media” in BPMT’s trust deed was directed toward media owned by public entities, not commercial organisations. The court disagreed that BPMT’s fourth objective was fatal to its charitable status.

BPMT was eligible despite its objectives potentially conflicting with different opinions and interests. The court rejected concerns that BPMT’s purposes depended on subjective views, asserting that BPMT’s purposes were ascertainable from its trust deed and activities.

 

Applicable principles: trusts as charitable entities – charitable purpose – ancillary non-charitable purposes – political purpose advocacy

 

Held: The court directed that BPMT be registered as a charity under the Act from the date of its application. Due to pro bono representation, no costs were awarded, but the Attorney-General was ordered to pay reasonable disbursements.

 

Vivian Mitchell is an LLB/BA graduate

Better Public Media 2023-NZCA-553

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