Charitable trusts and advancement of religion: On a whim and a prayer?

The advancement of religion is a controversial head of charitable trusts: whilst its foundations are based on tenets of intangible belief systems, New Zealand law, alongside other common law jurisdictions, supports the notion that the public benefit requirement of all charitable trusts be presumed in this particular head. Common law also reflects decades of evolution of the interpretation of the advancement of religion, thus not limiting the advancement of religion to only the traditional methods of yesteryear, such as offering church services. Nevertheless, with the recent contentious judgment in the New Zealand case of Liberty Trust v Charities Commission, this article submits that the established doctrines associated with the advancement of religion have been advanced beyond envisioned boundaries. The article supports a more conservative interpretation based on established case law. This would not only continue to support fully the evolution of the advancement of religion, but would also provide judicial certainty in an area of law that is undergoing continued change

Politics and Charity

This article considers the turbulent relationship of charities and politics and debates whether there is a judicial move towards creating a more harmonious relationship between the two objects. The issues are considered in light of the Charities Act 2006 (England and Wales) and the recent publication by the Charity commission for England and Wales of guidance on campaigning and political activity by charities. The article suggests that there is scant authority for the current approach of the common law and that clear guidance is necessary. The article concludes that although the intentions of the Charity Commission may be honourable, the results are inconclusive, and are unlikely to clarify many of the issues

Charitable trusts and political purposes: Law on the edge of change in Australasia

Historically a trust will be denied charitable status if its purposes are political, although this principle is fraught with difficulties because of the complex relationship between politics and charities. New Zealand has traditionally followed the jurisprudence of England and Wales, which determines that political trusts should be interpreted relatively widely so catching a broad section of trusts, thus excluding them from achieving charitable status. Australian jurisprudence however has displayed more reticence in its full acceptance of the political trust doctrine. Instead it has adopted a more narrow interpretation, so trusts that may fall foul of the doctrine in England and Wales and New Zealand, might successfully obtain charitable status in Australia. Then with the decision of the Australian High Court decision of Aid/Watch v Commissioner of Taxation, Australia finally departed from the jurisprudence of New Zealand and England and Wales. This article explores the Antipodean jurisdictions and critically considers Australia's significant jurisprudential shift regarding charitable trusts and political activity and whether New Zealand is on the edge of an equal change to charitable trust law

Charitable trusts and political purposes: Sowing the seeds of change? Lessons from Australia

The recent case of Aid/Watch v Commissioner of Taxation has created sea changes in Australia in relation to charitable trusts, and as a result our Antipodean neighbours appear to be blazing trails in the evolution of charitable trusts, whilst at the same time, New Zealand resolutely remains entrenched in the annals of charitable trust history. Can, and indeed should, New Zealand continue this traditional approach, as pressure mounts to explore more liberal interpretations of charitable trusts and political purposes? This article explores the two jurisdictions and considers critically, in light of very recent controversial judgments, the diverging paths being taken by the jurisdictions. Before any analysis of the proposition, there must first be a contextualisation of the legal position of charitable trusts and political purposes

Professional bodies and charity law

The word “charity” can mean many things to many people. The legal definition is inevitably rather complex and for the layperson, the general notion of charity is that of benevolence and philanthropy, and whilst the legal meaning and the layperson’s meaning of charity may diverge in some respects, it is widely accepted that the social construct of charity is seen as “means of redressing wrongs in society” so where “a State may have been unable to provide a function or service, charity could fill that void, and the voids would depend on the government and policies at the time.” It would also be fair to say that the four heads of charity, as will be addressed shortly, are rooted in government policy. Whilst this notion of redressing societal wrongs has been subject to some criticism, in particular that of Victorian society, where attempts were made to distinguish between the deserving poor and the undeserving poor and who should be most entitled to receive charitable gifts, and whilst the inherent issues relating to the concept of charity generally are outside the scope of this article, it is undoubtedly correct that charity itself is recognised as a socially cohesive part of society, both in terms of its origins, where charity “has been seen from the earliest days of Christianity as one of the central tenets of the Christian faith” to contemporary times, where the central obligation is to put others first, thus engaging the ephemeral concept of the spirit of charity

FHR European Ventures LLP v Cedar Capital Partners LLC

The question for the United Kingdom Supreme Court was whether a bribe or secret commission received by an agent could be held by the agent on trust for his principle, or whether the principle merely had a claim in equitable compensation for a sum equal in value to the bribe or the commission. This was a very important decision, not least because it has given rise to a great deal of academic commentary and judicial inconsistency over the last 200 years. The decision is also important in practical terms. If the bribe/commission is held on trust for the principle, then the principle has a proprietary claim to it, whereas if the claim results merely in equitable compensation, then there is no proprietary claim. This difference is important because if the agent becomes insolvent, then the proprietary claim would give the principle priority over the agent’s unsecured creditors. Whereas if the claim were for equitable compensation, then the principle would rank equally with other unsecured creditors, or pari passu. Further, if there is a proprietary claim, then the principle may trace in equity, whereas an equitable compensatory claim will have no right to trace in equity

Post Re Greenpeace Supreme Court Reflections: Charity Law in the 21st Century in Aotearoa (New Zealand)

The focus of this article is on the political purpose doctrine and public benefit within New Zealand charity law, in the light of the much awaited New Zealand Supreme Court decision in Re Greenpeace. This article asserts that the majority decision in Re Greenpeace was merely a reflection of the court’s ability to recognise the applicability of charity law in contemporary circumstances, in a way that responds to societal needs. The article considers the notion of public benefit as it relates to charity law, both prior to, and after Re Greenpeace, and contends that courts may find the public benefit where it is appropriate to do so, and in circumstances where the social framework favours that way of thinking