I look forward to a close reading of the Supreme Court decision released this afternoon, on the Greenpeace application for charitable status.

From the Scoop summary it appears that three out of five judges have decided to change the longstanding law, so that political advocacy no longer disqualifies a body from charitable status. The practical importance is that donors to charities may be entitled to tax rebates, and the charity is not subject to income tax.

I assume that the two dissenters did not think it appropriate for such a change to be made by judges, when Parliament has recently looked at the law governing charities, and could have modfied the tests. The summary indicates that they considered the change to be unjustifed on policy and principle grounds.

This decision will be welcome news to our client the Sensible Sentencing Trust, and other clients with altruistic activities and motives that are currently not favoured with charitable status for tax purposes.

7pm

I’ve now read the majority judgment. I’m not sure what to make of it. I suspect the majority judges think they’ve delivered a more conservative judgment than those who will have to apply it. That is despite clearly discrediting (with some reason) the longstanding bright line against charitable status for advocacy for law changes, and political activity. They explore section 5(3) of the Charities Act – that confirmed that advocacy ancillary to a recognised charitable purpose does not disqualify a trust. And they seem to say that political advocacy could be a charitable purpose on its own.

On the other hand they say they are not expanding the category of main purposes that are charitable. But they also encourage evolution of the common law by expanding charitable purposes by analogy to existing purposes.

I doubt whether even Greenpeace will be sure just what this decision will do for them, when the Dept of Internal Affairs chief excutive and the Charities Board apply it. I’m not sure why the Court did not effectively make the decision. Presumably it was because of restrictions in the way the issues came before the Court.

I think the chief executive of and the Board have room to confirm their rejection of Greenpeace.

Those decision-makers are unlikely to be grateful to the Court. It is just too hard to work out what the Court thinks they should do, though a robust confirmation that illegal activity cannot be charitable may be a steer.

Much of the judgment is consumed in saying what is wrong with the reasoning of the Court of Appeal. Each proposition is well supported with references and logic. But I do not know what it all adds up to. Possibly another reading will reveal a pattern that has eluded me in the detailed analysis.

There is worrying encouragement for those applying the law to apply their own views of what will benefit the public, and what will not, though other words emphasize that benefit to the public is not sufficient.

I wish Courts were given to drawing decision tree diagrams to guide those who must apply the law. This judgment might have been more readily understood if they’d drawn one, then worked backwards to describe its decision points, and why they are as they are. .

I doubt that they’ve opened a flood-gate. A more likely analogy might be that they’ve told the guys on the drafting gate to forget the old instruction to send anything with black spot to the works. The new instruction may be “a bit of black spot could be OK if the sheep looks pretty good to you in other respects”.