Public media has joined human rights, protection of the environment and promotion of community amenities as a charitable cause, based on the Court of Appeal’s November 2023 decision affirming Better Public Media Trust’s charitable status and eligibility for registration under the Charities Act.^[1]

This is the first court decision regarding advocacy-focused charities since the Supreme Court’s June 2022 decision rejecting Family First’s claim to charitable status (discussed here). It provides a useful additional example of an advocacy-focused organisation being accepted as charitable. 

This article briefly discusses the history of the Better Public Media Trust litigation, the Court of Appeal’s decision affirming the Trust’s charitable status, and the implications of the decision for other organisations.

History of the Better Public Media Trust litigation

Better Public Media Trust (BPMT) was established as a charitable trust, governed by a board of trustees incorporated under the Charitable Trusts Act 1957, in 2013. BPMT’s purposes and other terms are set out in an updated trust deed adopted in February 2018. 

Under the 2018 trust deed, BPMT’s purposes are focused on “public media”, defined as “public interest, non-profit, publicly-owned, independent or non-commercial media” of all forms (including television, radio, online and other media). Its stated purposes are:

• To advance public media in New Zealand.
• To promote the role of public media in educating, informing and entertaining all New Zealanders.
• To educate New Zealanders and promote informed debate about public media issues.
• To support improved access to funding, operating conditions and platforms of distribution for use by public media providers.
• To represent and advance the interests of media audiences.

BPMT’s activities establish that those stated purposes are essentially underpinned by the idea that robust, secure and independent public media - serving the public as ‘citizens’, rather than as ‘consumers’ - is required in order to strengthen democracy, culture and social cohesion. 

The 2018 trust deed was adopted in the midst of an extensive period of correspondence between BPMT and Charities Services regarding BPMT’s October 2015 application for registration under the Charities Act 2005 (Charities Act), from 2015 to 2018. 

In April 2019, the Charities Registration Board (Board) issued its decision declining BPMT’s application for registration.^[2] The Board decided that BPMT’s public media advocacy purpose - which the Board considered to be focused on promoting BPMT’s particular views regarding the importance/benefits of, and increased funding/support for, public media - was not charitable. 

BPMT appealed the Board’s decision to the High Court, but in March 2020 the High Court upheld the Board’s decision that BPMT was not charitable.   

BPMT then appealed to the Court of Appeal and, after a long delay to allow for the Family First case to be heard and decided by the Supreme Court, BPMT’s appeal was heard in May 2023. 

The Court of Appeal’s decision affirming Better Public Media Trust’s charitable status

The Court of Appeal, having considered evidence from BPMT that was not presented to the High Court, has now overturned the High Court’s decision and reached a different conclusion from the Board and the High Court. Public media advocacy, as undertaken by BPMT, is charitable, and BPMT qualifies for registration under the Charities Act (backdated to October 2015). 

The Court of Appeal’s decision focuses on whether or not BPMT’s purposes are charitable under the so-called 4^th head of charity - any other matter beneficial to the community.^[3]

The Court extracted the following key points in relation to assessing whether or not cause advocacy is charitable under the fourth head of charity from previous Greenpeace^[4] and Family First^[5] litigation:

• There is no general ‘political purpose’ prohibition on cause advocacy being charitable under New Zealand charity law. 
• To be charitable, cause advocacy must be charitable in nature in the sense of advancing public benefit in a way that falls within the ‘spirit and intendment’ of the 1601 statute from which New Zealand’s four heads of charity are derived,^[6] and this is to be assessed by analogy to purposes already held to be charitable. 
• The assessment needs to take into account: (1) the end that is advocated; (2) the means promoted to achieve that end; and (3) the manner in which the cause is promoted.

Applying those key points to the assessment of BPMT, the Court of Appeal considered that: 

• The cause advocacy or ‘end’ to be assessed in relation to BPMT, taking into account the purposes stated in its 2018 trust deed and its activities, is essentially “to enhance democratic and social values through the advancement of public media”. 
• That cause is clearly capable of being beneficial to the community, and the position that advocacy of that cause might conflict with other opinions or interests (eg, at the cost of private media interests, although the Court did not consider such cost to be apparent from any evidence) does not preclude the cause advocacy from being charitable.
• The evidence and information regarding the means and manner by which BPMT advocates for public media demonstrates that the advocacy is undertaken in a balanced and measured manner, encouraging informed discussion, rather than being one-sided advocacy. This reinforced the publicly beneficial nature of BPMT’s cause advocacy.
• BPMT’s altruistic focus on improving the media environment to enhance democratic and social values can be viewed as analogous to, and no more or less important than, Greenpeace’s altruistic focus on improving the physical environment, with the latter being confirmed as charitable in the Greenpeace litigation.
• BPMT’s purposes, or aspects of them, are also comparable to purposes confirmed as charitable in other New Zealand charity law decisions.^[7] 

Notably, the Court of Appeal distinguished BPMT from Family First on the basis that the means and manner by which BPMT promotes its purposes “genuinely endeavours to present a range of viewpoints and to assist in informing viewers and readers of the issues associated with public media”.  The Court contrasted this with Family First’s advocacy, which the Court described (somewhat simplistically and, arguably, misleadingly) as “staunch and discriminatory advocacy”. 

In addition, unlike Family First, BPMT’s situation did not raise any concerns regarding engagement and advocacy in relation to any ‘free-standing political issues’ (eg, contentious social policy issues or other such issues) that might affect BPMT’s claim to charitable status.

In focusing on BPMT, the Court of Appeal did not have to deal with the apparent incongruity that Greenpeace might not be so readily distinguished from Family First in relation to those two matters. 

Implications of the Court of Appeal’s decision for other organisations

The Court of Appeal decision regarding BPMT, as in the case of the Greenpeace and Family First litigation, is relevant to organisations with a focus on cause advocacy, not organisations for whom cause advocacy is minor and clearly incidental or ancillary to a recognised charitable purpose. 

For organisations focused on cause advocacy that claim, or wish to claim, charitable status and associated tax concessions and other benefits, the decision highlights the following key points: 

• The cause that your organisation advocates needs to be an end that is clearly beneficial to the community, or capable of being so, and is analogous or comparable to one or more ends - such as human rights, protection of the environment, promotion of community amenities, and now public media - that have been accepted as charitable causes. 
• Make sure that the relevant cause, and in particular the public benefit focus of the cause, is clearly articulated in your organisation’s stated purposes. For example, the BPMT itself may have assisted its own claim to charitable status by expressly stating in its trust deed that its end is to promote robust, secure and independent public media - serving the public as ‘citizens’, rather than as ‘consumers’ - in order to strengthen democracy, culture and social cohesion in New Zealand. 
• The means and manner of advocating the relevant cause should be balanced and measured, not staunch or discriminatory, and should not involve advocacy in relation to any ‘free-standing political issues’ that detract from charitable status. This may also be expressly stated in your organisation’s governing document and, just as importantly, needs to be reflected in your organisation’s activities. 

Get in touch

We have experts who are highly experienced in New Zealand charity law, regularly dealing with and resolving issues relating to charitable trusts and other charitable entities, Charities Act registration and compliance, charity tax concessions and other charity law matters. 

Get in touch with one of our charity law experts (below) if you have any questions about the Court of Appeal’s decision regarding BPMT and its potential implications for your organisation.