Opinion piece by Roger Partridge
[Roger Partridge is chair and a senior fellow of The New Zealand Initiative. He is a former Bell Gully litigation partner and chair. He is an honorary fellow and former executive director of the Legal Research Foundation and a former member of the New Zealand Law Society Council]
My recent report, Who Makes the Law? Reining in the Supreme Court,[i] has sparked widespread debate about judicial overreach by the Supreme Court.
Most of the commentary and feedback has been very positive. But some have suggested that cases like Ellis v R and Fitzgerald v R were merely outliers rather than symptoms of a deeper problem.[ii]
The report focused on those decisions because they are clear examples of judicial activism, each setting troubling precedents. However, many other recent Supreme Court decisions illustrate the problems with the court’s radical new legal method.
One such case, which made it only to the report’s footnotes, deserves closer scrutiny.
Disturbing pattern
That is the Supreme Court’s 2022 decision about Family First, a trust advocating for traditional family values.[iii] While less dramatic than Ellis or Fitzgerald, it reveals the same disturbing pattern: our highest court reshaping the law based on judges’ perceptions of changing social values.
At the heart of the case was Family First’s eligibility for continued registered charitable status.
The Court of Appeal upheld it, finding that Family First qualified under two traditional heads of charity: “education” and “other purposes beneficial to the public”. As the court observed, promoting family and marriage as important societal institutions could be charitable even if done from a traditional perspective.
The court concluded, “the fact that Family First favours… the ‘traditional family’ does not… mean that its advocacy for family and marriage as important and valuable institutions loses the necessary advancement of a public, charitable benefit”.[iv]
But the Supreme Court had other ideas. It stripped Family First of its registered charitable status with reasoning that was not only legally flawed but also constitutes a troubling foray into social engineering by the judiciary.
The legislation
To understand just how far the Supreme Court strayed, we need to start with some basic charities law.
Under s 13(1) of the Charities Act 2005, a trust like Family First must apply its income exclusively to charitable “purposes”.[v] These purposes fall into four traditional categories: relief of poverty, advancement of education, advancement of religion or other matters beneficial to the community – categories preserved in the 2005 Act.
Courts have long decided whether a purpose is charitable by addressing two questions: does it operate for public benefit and does it fall within centuries-old ideas of what amounts to charitable purposes?
This approach, confirmed by the Court of Appeal in Latimer v Commissioner of Inland Revenue and by the Privy Council,[vi] was preserved by Parliament in s 13 of the 2005 Act.
Yet, in a remarkable departure from this settled position, the Supreme Court in Family First abandoned this longstanding test. The court declared that a charity’s “activities” themselves must somehow qualify as “charitable”,[vii] effectively rewriting decades of established law.
In doing so, however, the court confused the fundamental distinction between a charity’s “purpose” (which must be charitable) and its “activities”.
The court made this fundamental change in the most casual manner – through a footnote relying on s 18(3) of the Act. Section 18(3) simply requires the relevant official to “have regard to” an entity’s activities when considering registration applications.
Even on a superficial reading, it is clear from the statutory scheme that this provision was not intended to create a new requirement that activities themselves be “charitable”. Indeed, the very concept of “charitable activities” is foreign to charities law.[viii]
‘Developing the law’
This judicial rewriting of the statutory scheme not only confused the fundamental distinction between purposes and activities, it also ignored s 13(1) ’s clear focus on charitable purposes as the operative test for registration.
In overturning the Court of Appeal, the Supreme Court defined its role as “development of the law to adjust to societal changes”. The majority explicitly stated that “the common law method appropriately includes recognition of changing social conditions and values”.[ix] How the court is to divine these values is not made clear.
The court’s approach is evident in the majority’s test for “charitable advocacy”: activities would qualify as charitable only if they advance ”purposes the law regards as beneficial in a way that is analogous to previously recognised charitable purposes”.
But this ostensibly objective test masks circular reasoning: while claiming to follow what “the law regards as beneficial”, the court simultaneously asserts its power to decide what benefits society now values.
This circular logic effectively empowers judges to decide which viewpoints deserve legal protection based on their distillation of society’s contemporary values.
But, as Jack Hodder KC pointedly observed in his critique of the Supreme Court’s confidence that it is capable of discovering society’s changing values, “Whose perception? When and why did any such change occur? What evidence? And what accountability?”[x]
The Supreme Court imposed novel hurdles for both grounds on which Family First relied to maintain its charitable status.
For education, Family First’s research and publications were required to demonstrate a “balanced” presentation – a requirement not imposed on environmental advocacy, for example. But what constitutes sufficient balance? The judgment provides little guidance, creating a standard that seems to vary with the cause being advocated.
For public benefit, the court required Family First to prove its advocacy activities themselves were “charitable” – effectively creating a new requirement that advocacy must independently qualify as charitable before the underlying purpose could be considered beneficial to the public.
‘State-sanctioned cancel culture’
The court’s different treatment of Greenpeace’s earlier charitable status application starkly illustrates these problems.[xi] While both Family First and Greenpeace engage in advocacy activities, the court treated Greenpeace’s environmental advocacy purpose as inherently beneficial to the public.
Yet for Family First, the court focused on scrutinising its advocacy activities rather than its charitable purpose of promoting family values.
The court offered no principled basis for treating these different forms of advocacy so differently. Instead, it simply assumed environmental advocacy serves the public good but that traditional values advocacy requires extra justification. This is judicial favouritism masquerading as legal principle.
The court’s approach also sits uneasily with its acknowledgement of New Zealand’s increasingly diverse society.
In a pluralistic democracy, we should expect – and indeed welcome – a variety of viewpoints on contentious social issues. As Justice Hammond observed in Re Collier, courts should not “enter into the debate at all” but should simply “sieve out debates which are for improper purposes; and then leave the public debate to lie where it falls, in the public arena”.[xii]
We will never agree with every position taken by every charity – nor should we expect to. If their purposes are charitable – that is, if they are amongst the four categories set out in the 2005 Act – they should be permitted to advocate for those purposes without judicial assessment of their alignment with contemporary values.
Yet the court’s reasoning effectively privileges certain forms of advocacy while disadvantaging others, cloaking judges’ preferences in a specious language of contemporary values.
The court’s confused focus on activities rather than purposes, combined with its subjective values assessment, deprives the charitable sector of the predictability and impartiality it should be entitled to expect under the rule of law. Any charity can now be deregistered simply because decision-makers consider its purposes misaligned with their perception of society’s values.
One Australian commentator has aptly described the court’s approach as “state-sanctioned cancel culture”.[xiii]
Jumping the gun
The timing of the Supreme Court’s intervention was also concerning.
When the court made its decision, Parliament was actively considering reforms to the Charities Act. Yet rather than allowing this democratic process to unfold, the court effectively pre-empted it, imposing its own vision of which causes deserve charitable recognition.
While Parliament has since passed procedural amendments to the Act, the court’s decision continues to shape the substantive law governing charitable purposes.[xiv]
These problems with the Supreme Court’s approach in Family First are not accidental. They flow inevitably from the court misunderstanding its proper role.
Judges lack the institutional tools to discern “changing societal values”. They cannot conduct broad consultation, commission research or properly weigh competing interests. Unlike Parliament, judges also lack democratic accountability for their policy choices.
When courts depart from settled legal principles to apply judges’ perceptions of changing values, they undermine both the consistent treatment and the public confidence in judicial impartiality required to safeguard the rule of law.
The decision exemplifies what former Otago University Law Professor James Allan describes as an emerging “imperial judiciary… where the top judges… are giving themselves newfound power at the expense of the elected branches of government”.[xv]
As Who Makes the Law? argues, Parliament must act to restore appropriate constitutional boundaries. In this case, it should pass legislation to reinstate the former test focusing on charitable purposes and explicitly clarify that while activities may evidence purposes, they are not themselves required to be “charitable”.
Indeed, with the 2023 amendments to the Charities Act effectively removing charities’ ability to appeal to the Supreme Court, legislation is now the only practical way to address the court’s problematic approach. This would return objective principle to an area of law the court has made improperly subjective through both legal error and misguided judicial value judgments.
In the meantime, the Family First decision stands as a cautionary tale of judicial overreach.
It shows how the Supreme Court’s self-proclaimed authority to develop law based on changing social values undermines both the democratic legitimacy of the legal system, the sovereignty of Parliament and the rule of law.
[i] Roger Partridge, Who Makes the Law? Reining in the Supreme Court (The New Zealand Initiative: Wellington, 2024).
[ii] Ellis v R [2022] NZSC 114; Fitzgerald v R [2021] NZSC 131.
[iii] Attorney-General v Family First New Zealand [2022] NZSC 80.
[iv] Family First New Zealand v Attorney-General [2020] NZCA 366 at [146].
[v] Charities Act 2005, s 13(1)(a).
[vi] Latimer v Commissioner of Inland Revenue [2002] 3 NZLR 195 (CA) at [32].
[vii] Family First [2022] NZSC 80 at [14].
[viii] Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue [1999] 1 SCR 10 at [152]-[153].
[ix] M McGregor-Lowndes and F Hannah (2022) ACPNS Legal Case Notes Series: 2022-93 Attorney General v Family First New Zealand 3 July 2022 at 14.
[x] Jack Hodder, One Advocate’s Opinions – The ‘Least Dangerous Branch’? Predictability and Unease in Michael Littlewood (ed), The Supreme Court – The Second Ten Years (Wellington: LexisNexis, 2024), 14.
[xi] Greenpeace of New Zealand v Charities Registration Board [2020] NZHC 1999.
[xii] Re Collier [1998] 1 NZLR 81 (HC) at 90.
[xiii] Family First at [187].
[xiv] Charities Amendment Act 2023.
[xv] James Allan, New Zealand’s Imperial Judiciary The Spectator Australia (2 March 2024).
