SPCS

SOCIETY FOR PROMOTION OF COMMUNITY STANDARDS INC.

Charity Law – “public benefit” v. “gravely injurious to the public benefit” – re Anti-vivisection Society objects

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“In the Anti-vivisection Society case [National Anti-Vivisection Society v IRC [1947] 2 All ER 217], the principle was clearly stated in that any assumed public benefit from the advancement of morals amongst people, which could, or might, result from the society’s efforts to abolish the practice of vivisection was far outweighed by the detriment to medical science and research, and consequently, to the public health, that would result if the society succeeded in its object.”

[Comment 1: This detrimental impact was defined and proved to the Court – see below]

“[The] Main object of The National Anti-Vivisection Society (“NAVS”) was the “total abolition of vivisection and (for that purpose) the repeal of the Cruelty to Animals Act, 1876, and the substitution of a new enactment prohibiting vivisection altogether.”

[Comment 2: Such an extreme abolitionist object cannot be compared to or seen to be in any way analogous to one that merely seeks to “focus attention on the harmful nature and consequences of [some vivisection]. Nor can it be seen to be analogous to a charitable entity’s object that seeks “to foster public awareness of the benefits to social economic and moral welfare of [the] community” by reducing our dependence on live animal experimentation to test products in industry etc. Fostering public awareness through education of the perceived ‘moral evils’ of “cruelty to animals” is central to a wide range of “animal rights” registered charities in New Zealand (e.g. SAFE – Save Animals From Exploitation.]

[Comment 3: NAVS expressed its extreme abolitionist campaign (the TOTAL abolition of vivisection) by indulging in blatant “political advocacy” – pressing for the repeal of legislation and its substitution by a new enactment. An analogous example of this political activity is the case of a certain New Zealand Family-oriented charity pressing for the repeal of the ‘anti-smacking legislation’ and its substitution by legislation incorporating the proposed “Burrows amendment”. Other analogous examples are charities like Barnados and Save the Children that aggressively pressed for the repeal of the s. 59 clause in the Crimes Act 1961 and lobbied for its substitution by the ‘anti-smacking legislation’ championed by Green Party ex-MP Sue Bradford].

“On balance the object of the society [NAVS] was [ruled to be] gravely injurious to the public benefit and hence could not be charitable. Lord Simonds protested against the notion that the court must see a charitable purpose in the intention of the society to benefit animals and thus elevate the moral character of men but must shut its eyes to the injurious results to the whole human and animal creation. … [that would follow total abolition of vivisection].

“It was proved that: – (a) a large amount of present day medical and scientific knowledge is due to experiments on living animals; (b) many valuable cures for, and preventatives of disease have been perfected by means of experiments on living animals, and much suffering both to human beings and to animals has been either prevented or alleviated thereby. If vivisection were abolished, a very serious obstacle would be placed in the way of obtaining further medical and scientific knowledge calculated to be of benefit to the public. Any assumed public benefit in the direction of the advancement of morals amongst people, which could, or might, result from the society’s efforts to abolish vivisection was far outweighed by the detriment to medical science and research, and, consequently, to the public health, that would result if the society succeeded in its object. On balance the object of the society was gravely injurious to the public benefit. It was not charitable.

“Where on the evidence before it the court concludes that however well-intentioned the donor, the achievement of his object will be greatly to the public disadvantage, there can be no justification for saying that it is a charitable object…. The test is to be applied from evidence of the benefit to be derived by the public or a considerable section of it, though a wide divergence of opinion may exist as to the  expediency, or utility of what is accepted generally as beneficial. The court must decide whether benefit to the community is established. He cited with approval authority to the effect that:

“There is probably no purpose that all men would agree is beneficial to the community: but there are  surely many purposes which everyone would admit are generally so regarded, although individuals differ as to their expediency or utility. The test or standard is, I believe, to be found in this common understanding.” But, the court must still in every case determine by reference to its special circumstances whether or not a gift is charitable.

“4.6 Where a particular practice or doctrine includes something contrary to the law in England and Wales, or in contradiction of public policy, public benefit cannot be established and hence the body will not be a charity (despite the public benefit otherwise established from the totality of the practices and doctrines).”

[Comment 4: A charity that merely seeks to “focus attention on the harmful nature and consequences of [some human activity e.g. smoking, alcohol abuse, fraud, corruption, human pollution of the environment, or the destruction of Monarch Butterfly habitats etc], rather than using political means to abolish such activities by seeking to change the law, cannot be accused of indulging in non-charitable activities. The New Zealand Bill of Rights Act 1990 protects the fundamental rights of those involved in charities to impart information and inform people, promote debate etc on controversial topics. It safeguard’s New Zealanders rights to “freedom of expression”. The majority of fair-minded New Zealanders would NOT view the expression of views by registered charity workers, that are pertinent to fulfilling the charitable objects of a charitable entity – e.g. “supporting] responsible freedom of expression”, as in breach of the The Charities Act 2005].

Source of extracts quoted above:

Analysis of the law underpinning Public Benefit and the Advancement of Moral or Ethical Belief Systems.

Charity Commission. September 2008. pp. 6, 9.

Note: SPCS Comments 1-4. inserted in square-brackets…[…]

The Church of Scientology of New Zealand Inc. – registered NZ charity assessed as serving the “public good”

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The Church of Scientology of New Zealand Inc. [“CoSNZ”] was ruled by the New Zealand Charities Commission in 2008 to be a body established for a charitable purpose – the advancement of religion under the third head of charity law. All its six religious objects were ruled to be “charitable” and the controversial activities of the church – auditing and training of its financial members – were, in effect, ruled to be serving a “public benefit” – i.e benefiting non-members of the church.

Its Rules state:

The object for which the Church is established (hereinafter “the Object”), and to which all provisions of these Rules are subservient, is to operate exclusively for charitable, religious and educational purposes solely within New Zealand, and, in particular, for:

2.1 The espousal, presentation, propagation and practice of, and the maintenance of the purity and integrity of, the religion and the creed of Scientology.

2.2 The advancement of the  religious and other charitable work of Scientology Churches and Missions in New Zealand.

2.3 The regulating and conducting of religious services according to the  rites of the Church.

2.54 The maintenance of the fabric and furnishings of Scientology Churches and Missions in New Zealand.

2.5 The production and dissemination of Scientology religious works.

2.6 The advancement of religious education and other charitable work in accordance with the doctrines and practice of Scientology.

According to the NZ Charities website (www.charities.govt.nz) CoSNZ employed 21 full-time workers and six part-time workers in the financial year ended 31 December  2010: involving on average, per  week, 914 hours of paid employment. The church is overdue in its filing of its financial statements for the year ending 31 December 2012 (due date 30 June 2012). Its gross income in 2010 was $1,235,207 sourced from “service provision” ($341,417), donations ($495,559), investment income ($$11,316) and all other income ($386,915). Its total expenditure was $966,858, comprising salaries and wages ($151,418) and service provision costs of ($475,522).

Scientology was ruled by the Charity Commission for England and Wales as failing the “public benefit” legal test applied to charities, in that public benefit was not established. It was ruled to NOT constitute a religion.

However, the New Zealand Charities Commission, which has now been disestablished and absorbed into the Department of Internal Affairs, ruled CoSNZ to be a bona fide religion in 2008 and granting it charitable status. Once under the “religion” covering the Commission presumably made an assumption that its activities must therefore be of “public benefit”. However, it is noteworthy that:

“The Commissioners [England and Wales] considered the core practices of Scientology, namely auditing and training, and concluded that the private conduct and nature of the practices together with the general lack of accessibility meant that the benefits were of a personal as opposed to a public nature. Accordingly, following the legal test referred to above, public benefit had not been established.”

Source: Extracts quoted from:

[The] Charity Commission [for England and Wales]. Decision of the Commissioners [4 pages]

Application by the Church of Scientology (England and Wales) for registration as a charity

[Made on 17th November 1999]

[Emphasis in original]

For full Decision see: http://www.charitycommission.gov.uk/Library/start/cosdecsum.pdf

Legal test of “public benefit” for charities: The Church of Scientology of New Zealand Inc. passes the test

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On 30 June 2008 The Church of Scientology of New Zealand Inc. (“CoSNZ”) was registered as a charity by the Charities Commission headed at that time by Mr Trevor Garrett. The now disestablished Commission, recently absorbed into the Department of Internal Affairs, accepted this entity (CoSNZ) as a charity under the third head of charity law – “the advancement of religion” (referred to under the Commission’s terminology as “Religious Activities”). In doing so, the Commission took the legal position that CoSNZ constituted a genuine religion for the purposes of charity law – “religion” defined as being characterised by a belief in a supreme being and an expression of belief in that supreme being through worship. Re South Place Ethical Society [1980] 1 WLR 1565, Dilon at p. 1572 D-E. [Emphasis added].

However, the Charity Commission for England and Wales, in its well-publicised 1999 decision in which it refused to grant the Church of Scientology (England and Wales) [“CoS“] charitable status; while concluding that Scientology believed in a supreme being, decided that in applying the test criterion of “worship”, it was NOT a religion. The legal criterion of worship would be met, the Commission stated “where the belief in a supreme being found its expression in conduct indicative of reverence or veneration for a supreme being”. CoS (England and Wales) failed this test.

The Commissioners (England and Wales) “considered the activities of auditing and training, which Scientology regards as its worship, and concluded that auditing is more akin to therapy or counselling and training more akin to study and that both auditing and training are not in their  essence exhibitions of reverence paid to a supreme being and such Scientology practices are not worship for the purposes of charity law.”

The Commissioners decided that auditing and training do not constitute worship as defined and interpreted from legal authorities.

In direct contrast, the New Zealand Charities Commission Registration Team and officials, having no doubt thoroughly scrutinised the controversial activities of CoSNZ, as well as presumably examined the UK Charity Commission decision re CoS; took the opposite view. Scientology according to the NZ Commission is a bona fide religion for the purposes of charity law.

Clearly both Commissions cannot be right on this important legal matter: the legal definition of “religion”.

Leaving aside the issue of whether or not Scientology constitutes a religion, under the legal definition of “religion” in charity law, Scientologists in their application for charity status with the UK Commission, contended that Scientology served a “public benefit”: the latter a prerequisite for acceptance as a charity (under all four charity law heads). Their case for charitable status was subjected to the “public benefit” legal test and it failed.

In contrast the New Zealand Charities Commission, having no doubt carefully and thoroughly examined the “public benefit” test applying to CoSNZ, took the opposite view: CoSNZ was ruled both a bona fide religion AND one that serves a “public benefit”. This legal position is at complete variance with that issued by the UK Commission, even though both sets of Charities experts examined essentially the  same practices of the Church: auditing and training.

The Commissioners for England and Wales, also considered CoS for charitable status under the fourth head of charity law: that it is arguably established “for a charitable purpose which promotes the moral or spiritual welfare or improvement of the community”. They concluded that even if CoS could be ruled as fulfilling this test under the fourth head, it failed under the “public benefit” test. They concluded, with reference to their examination of “auditing and training” that:

“… the private conduct and nature of these [CoS] practices together with their general lack of accessibility meant that the benefits were of a personal as opposed to a public nature. Accordingly, following the legal test referred to above, public benefit had NOT been established.” [Emphasis added]

Again, to emphasis the point, the New Zealand Charities Commission accepted that The Church of Scientology of New Zealand Inc. did pass the “public benefit” test and constituted a bona fide “religion”; while the UK Commission took the opposite view legally on both counts.

It would appear that the New Zealand Charities Commission’s decision concerning The Church of Scientology sets a benchmark as to how it approaches the “public benefit” test for charitable status. Numerous other decisions it has issued that are analogous to this controversial one, provide a clear direction to how charity law in New Zealand has been applied in the last five years with respect to “public benefit”.

The Commissioners for England and Wales recognised that the “public benefits” CoS was claiming, amounted to “intangible benefits”. Whilst recognising that these could be real, the Commissioners concluded:

“…the test [for “public benefit”] was that the whole tendency of charity in the legal sense under the fourth head is towards tangible and objective benefits but that in the case of an intangible benefit that at least approval by the common understanding of enlightened opinion for the time being would be necessary before an intangible benefit could be taken to constitute sufficient benefit to the community [Emphasis added]. National Anti Vivisection Society v IRC [1948] AC 31, Lord Wright at p. 49.”

Clearly, the New Zealand Charities Commission in 2008 considered the “intangible benefits” gained by the NZ public  (non-scientologists) from the practices of Scientology, constituted solid and abiding evidence that this “religion” was worthy of charitable status, as it conferred an undeniable (in their view) “public benefit”.

References:

Source: Extracts quoted from:

[The] Charity Commission [for England and Wales]. Decision of the Commissioners [4 pages]

Application by the Church of Scientology (England and Wales) for registration as a charity

[Made on 17th November 1999]

[Emphasis in original]

For full Decision see: http://www.charitycommission.gov.uk/Library/start/cosdecsum.pdf

 

Legal test of “public benefit” applied to charities: the Church of Scientology (England and Wales) fails test

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The Church of Scientology (the Church) is an international organisation which promotes a belief system, doctrines and practices known as Scientology. The Church has its international headquarters in the United States…. The Church has now now established a company incorporated under the Companies Acts and limited by guarantee called Church of Scientology (England and Wales) (CoS) to further its work in this country. In September 1996, CoS applied to the [Charity] Commission [for England and Wales] for registration as a charity pursuant to section 3(2) of the Charities Act 1993…

CoS argues that it is a body established for the charitable purpose of the  advancement of religion under the third head of charity law, or, in the alternative, if not so established, that it is established for a charitable purpose which promotes the moral or spiritual welfare or improvement of the community under the fourth head of charity law. Whether under the third head or fourth head of charity law, CoS argues that it is established for the public benefit…

The Commissioners having considered the full legal and factual case put to them by CoS, and having reviewed the  relevant law, taking into account the principles embodied in ECHR [European Convention on Human Rights] where appropriate, decided that CoS was not established for charitable purposes or for the public benefit and was therefore not registrable as a charity under section 3(2) of the Charities Act 1993.

In making that determination the Commissioners further concluded that:

(1) The CoS is not charitable as an organisation established for the  charitable purpose of the advancement of religion because, having regard to the  relevant law and evidence, Scientology is not a religion for the purposes of English charity law.

(a) The Commissioners, considered that the legal authorities establishing the meaning of religion in charity law were ambiguous, but having construed such authorities in a way compatible with ECHR they concluded that the definition of religion was characterised by belief in a supreme being and  an expression of belief in that supreme being through worship. Re South Place Ethical Society [1980] 1 WLKR 1565, Dillon J at p. 1572 D-E.

(b) … The Commissioners concluded that Scientology believed in a supreme being.

(c) The Commissioners decided that the criterion of worship would be met where the belief in a supreme being found its expression in conduct indicative of reverence or veneration for the supreme being….

The Commissioners decided that auditing and training do not constitute worship as defined and interpreted from legal authorities.

(2) That CoS was not established for the charitable purpose of promoting the moral or spiritual welfare and improvement of the community.

(a) The Commissioners considered that CoS was not analogous to the established legal authorities which governed this area of the law. Re Scowcroft [1898] 2 Ch 638, Re Hood [1931] 1 Ch 240, Re Price [1943] Ch 422, Re South Place Ethical Society. They concluded CoS was not analogous to the decided cases because it promoted a formal and highly structured system of belief (which it regarded as a religion), necessitating membership of or adherence to a particular organisation for access to or participation in its doctrines, practices and beliefs such that these were not generally available to the public at large. However the Commissioners further concluded that these legal authorities were ambiguous.

(b) The Commissioners considered and interpreted these authorities compatibly with the ECHR and concluded that the key aspects of the charitable purpose of promoting the moral and spiritual welfare or improvement of the  community which could be discerned from these authorities was that the doctrines, beliefs and practices involved were generally accessible to the public and capable of being applied or adopted by them according to individual judgement or choice from time to time in such a way that the moral and spiritual welfare or improvement of the community might result, Re Price, Cohen J at 423. Accordingly, the Commission concluded, it would be possible for non-religious belief systems promoted by a membership organisation to be established for such a purpose if those criteria were satisfied.

(c) The Commissioners considered in relation to the doctrines and practices of CoS whether these were so accessible and capable of such application, but concluded that because of the nature and organised practice of the beliefs of Scientology they were on balance neither so accessible nor could be so applied such that the moral and spiritual welfare or improvement of  the  community might result.

(3) That CoS was not established for the public benefit.

In considering the legal test applied to organisations established for purposes falling within the first three heads of charity law in that they were entitled to the presumption of public benefit and the different legal test applied to the fourth head of charity law where public benefit had to be demonstrated, the Commissioners considered that such a distinction between the legal tests was consistent with ECHR…. For the fourth head of charity, public benefit needed to be established although there were cases where it may be self evident and need to be proved….

The Commissioners considered whether if CoS had been established for the charitable purpose of advancing religion, it was also established for the public benefit….

The Commissioners decided that in the case of CoS, the relative newness of Scientology and the judicial and public concerns which had been expressed about its beliefs and practices, led them to conclude that it should not be entitled to the  presumption of public benefit. Accordingly, it was for CoS to demonstrate that it was established for the public benefit….

The Commissioners considered that this test [of public benefit] must be applied to the core practices of such an organisation [as CoS] and not to incidental activities or other activities which may already be regarded as charitable.

After reviewing the practices of auditing and training, considered by CoS to be central features of the practice of Scientology, the Commissioners considered that these are in fact conducted in private and not in public and that in their very nature are private rather than public activities such that no legally recognised benefit could be said to be conferred on the public. It could not be concluded that the benefits of the practice of Scientology extended beyond the participants. Accordingly public benefit was not established.

The Commissioners went on to consider whether, if CoS had been established for a charitable purpose of promoting the moral or spiritual welfare or improvement of the community, it was also established for the public benefit. The Commissioners considered that it was for CoS to establish public benefit as this was a purpose falling within the fourth head of charity law. The Commissioners considered the relevant legal test of public benefit to be applied to organisations established under the  fourth head of charity. The Commissioners concluded that the test was that the whole tendency of charity in the legal sense under the fourth head is  towards tangible and objective benefits but that in the case of an intangible benefit that at least approval by the common understanding of  enlightened opinion for the time being would be necessary before an intangible benefit could be taken to constitute sufficient benefit to the community. National Anti-Vivisection Society v IRC [1948] AC 31, Lord Wright at p. 49. The  Commissioners considered that in the case of the purpose of promoting the moral or spiritual welfare or improvement of the community, and thus of CoS, the issue was one of intangible benefit and that in relation to intangible benefit the Commissioners considered the legal test to refer to a common consensus of opinion amongst people who were fair-minded and free from prejudice or bias.

The Commissioners considered the core practices of Scientology, namely auditing and training, and concluded that the private conduct and nature of these practices together with their general lack of accessibility meant that the benefits were of a personal as opposed to a public nature. Accordingly, following the legal test referred to above, public benefit had not been established.

Source: Extracts quoted from:

[The] Charity Commission [for England and Wales]. Decision of the Commissioners [4 pages]

Application by the Church of Scientology (England and Wales) for registration as a charity

[Made on 17th November 1999]

[Emphasis in original]

For full Decision see: http://www.charitycommission.gov.uk/Library/start/cosdecsum.pdf

 

A close call on a questionable debate – Media Law – by Steven Price, barrister

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Eyebrows have been raised at a couple of Press Council decisions last month. The Council upheld complaints against newspaper columns by Paul Holmes (Case 2254) and Michael Laws (Case 2253) for inaccurately and gratuitously denigrating Maori as a race.

Holmes was attacking Waitangi Day. “Well, it’s a bullshit day,” he wrote. “It’s a day of lies. It is loony Maori fringe self-denial day. It’s a day when everything is addressed, except the real stuff. Never mind the child stats, never mind the national truancy stats, never mind the hopeless failure of Maori to educate their children and stop them bashing their babies. No, it’s all the Pakeha’s fault. It’s all about hating whitey.”

Along the way, Holmes slated the rudeness of Maori protesters, their sense of entitlement to “a perfect world of benefit provision”, and the way Maori extort millions of dollars from Pakeha by inventing bizarre breaches of “never-defined principles of the Treaty of Waitangi”.

Some of it was plainly aimed at specific “hate-fuelled weirdos” who protest at Waitangi. But most of it seemed to be about Maori as a whole, as the Press Council noted….

This is a close call, and I can see where the Press Council was coming from. But I’m inclined to think it’s better to debate these columns and scoff at them, rather than say they should never have been published.

Reference:

For full report go to: http://www.nzlawyermagazine.co.nz/CurrentIssue/Issue187/187C3/tabid/4416/Default.aspx

Steven Price is a barrister specialising in media law. He writes a blog at www.medialawjournal.co.nz.

NZLawyer.  issue 187. 29 June 2012