Supreme court rules Family First isn't a charity

Family First, a conservative group founded to champion traditional families, is not eligible to be a registered charity, the supreme court has ruled.

The decision, a major development in the case law surrounding charities in New Zealand, brings to an end an almost decade-long battle for the group to be registered under the Charities Act, a status which comes with tax benefits.

Family First, which is fronted by its national director Bob McCoskrie, was founded in 2006 to promote and advance research and policy supporting marriage and families. The group holds the natural family to be a man, a woman and their children. Since its formation, the group has opposed numerous causes, including abortion, gay marriage, and cannabis law reform.

Recognised charitable purpose

To be registered as a charity in NZ, organisations must have a recognised charitable purpose, which is set out in the act as the relief of poverty, advancement of education or religion or any other matter beneficial to the community. The four purposes are referred to as the four ‘heads’ of charity.

Family First was registered as a charity in 2007, however, it was deregistered by the charities registration board in 2013. Its main purpose was political, not charitable, the board found, as it sought to advance points of view about family life which had no self-evident public benefit as a matter of law. 

The group appealed to the high court, which sided with the board. However, the court of appeal, in a majority judgment released in 2020, found Family First qualified for registration as it met the second and fourth heads of charity: the advancement of education and other matters beneficial to the community. 

The courts also had to consider the issue of advocacy. The act lists advocacy as an example of a non-charitable purpose but says that if it’s merely ancillary to the main charitable purpose of a group then it shouldn’t prevent registration.

Following the court of appeal decision, the attorney-general appealed to the supreme court.

In its decision, released on Tuesday, the supreme court ruled that Family First didn’t qualify as a charity on the basis of the second head, the advancement of education.

“Although the [attorney-general] accepted the research reports have some educative value, most of the material put forward by Family First suggests its primary objective is to advocate rather than to educate,” the judgment said.

Family First also argued its purpose of supporting the family and marriage as foundational to a strong and enduring society qualified it for registration under the fourth head of charity: matters beneficial to the community.

The supreme court disagreed.

'Discriminatory'

In its judgment, the court described Family First’s purposes as “discriminatory” and said its advocacy of the role and importance of a “natural family” – a marriage between a man and a woman – wasn’t self-evidentially beneficial. 

“As we see it, pursuing support for the traditional family by advocating against law reform which would recognise or support other forms of family can be seen as discriminatory.”

While the decision to grant Greenpeace charitable status opened the door to advocacy-based purposes, the court found Family First’s advocacy on issues such as abortion, euthanasia and censorship weren’t “merely ancillary” to its broader purpose.

“That means that, in order to maintain its charitable status, Family First must establish that advocating for or against reform of the law relating to abortion, euthanasia and the like is, itself, charitable.”

The judgment said this couldn’t be done.

“These are issues on which there are differing views: they involve the advancement of causes. It is not possible to say whether the views that are promoted are of benefit in the way the law recognises as charitable; they are matters of opinion.”

The supreme court set aside the declaration of the court of appeal that Family First qualified for registration under the Charities Act.

In a minority decision, Justice Joe Williams talked about the importance of selflessness as a pre-condition for establishing charitable purpose.

Promoting controversial causes or ideas was not in itself grounds for disqualification, he said.

“An advocacy group that addresses a controversial topic in a balanced way may well be charitable, even if it ultimately favours one side or the other.”

However, Williams didn’t think this was the case with Family First.

“The key question is whether Family First’s manner and means of execution can be described as fair, balanced and respectful.

“As I have said, this will usually be a question of degree. For the reasons already traversed, I too am of the view that the answer to that question is plainly no.”