SPCS

SOCIETY FOR PROMOTION OF COMMUNITY STANDARDS INC.

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

 

Promotion of ethical standards of conduct, good citizenship and public participation in the prevention of crime

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The Promotion of ethical standards of conduct, spiritual welfare or improvement, good citizenship,  moral improvement, public participation in the prevention of crime. and the sound administration of the law, have ALL been considered charitable purposes within the Fourth Head of English Charity Law (Lord Macnaghten’s fourth head of charity)

“The Charity Commissioners [for England and Wales: [1999] Ch. Comm. Dec. November 17 (the Church of Scientology), p. 29]] have suggested that Re Price and Re South Place Ethical Society provide authority for saying that an organisation that disseminates ideas which are broadly philosophical and which are generally accessible to and can be applied within the community and which can be adopted freely from time to time according to individual choice or judgment by member of the public should be charitable. Such a purpose is compatible with ECHR [European Convention on Human Rights] principles if charitable status is not denied because the organisation is promoting a belief system which is not a religion in terms of English charity law or because membership adherence to the organisation is not necessary.

“The Charity Commissioners have determined that the promotion of racial harmony is charitable by analogy to the promotion of spiritual welfare or improvement. In particular, the Community Security Trust was registered with one of its objects being the promotion of good race relations between the Jewish community and other members of society by working towards the elimination of racism in the form of anti-Semitism.

“The Charity Commissioners have also entered on the register a number of trusts within this category as promoting good citizenship…

“The promotion of good citizenship can cover the promotion of public participation in the prevention of crime, particularly that which is  racially motivated.

“The Commissioners have indicated that they regard the promotion of ethical standards of conduct by organisations as charitable within this category [See (1994) 2 Ch. Com. Dec., pp.5, et seq (Public Concern at Work)]. The promotion of the sound administration of the law can also be regarded as charitable as being the promotion of moral improvement [[1996] Ch. Com. Rep., paras 60-65 (JUSTICE)].”

Source: Extracts from The Law and Practice Relating to Charities, 4th Edition Hubert Picardo QC (pp. 126-127)

Research into and dissemination of information useful to the community: charitable purposes

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“Research into matters that are useful to the community is capable of being charitable under the fourth head [of charity as defined by Lord Macnaghten i.e. serving a “public benefit”] as well as falling under the head of education and…”

[supported by case law: Re Besterman’s Will Trusts (1980) Times, 22 January repeated in McGovern v A-G [1982] Ch 321. And see The Consumers’ Co [1985] Ch Com Rep 12-14, paras 28-32].

Source: Extract from The Law and Practice Relating to Charities, 4th Edition Hubert Picardo QC (p. 220-221).

Comment: This means that the charitability of an incorporated society can be established in law under at least two heads: advancement of education AND serving a “public benefit” through the “promotion of moral  or spiritual welfare or improvement”.

“Promotion of Moral or Spiritual Welfare or Improvement” and “the Charitability of Moral Improvement”.

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Extract from The Law and Practice Relating to Charities, 4th Edition Hubert Picardo QC (pp. 220-221)

It now appears to be possible to isolate a further [4th] head of charity [in addition to relief of poverty, advancement of education and advancement of religion] consisting of ‘trusts for certain purposes which are not religious but tend to promote the moral or spiritual welfare of the community or a sufficiently important section of the community’. [Emphasis added]

Note: A trust to elevate the community spiritually has been upheld in Canada: see Re Orr (1917) 40 OLR 567.

See Tudor on Charities (9th edn) 115-117 [for discussion on what constitutes “a sufficiently important section of the community”]

This far from compendious [4th] head [of charity] is admittedly fashioned from heterogeneous materials. No general principle should be deduced from animal charities which are an anomaly. Trusts for the promotion of temperance are more surely justified as charities by reference to the promotion of health than by reference to the somewhat vaguer concept of moral improvement….

Re Price ….[involving] an unincorporated association called the Anthroposophical Society of Great Britain …. The learned judge [Cohen J] on hearing evidence that the teachings of Dr Rudolf Steiner were directed to the mental or moral improvement of man and were not contra bonos mores decided that they might result in such mental or moral improvement and upheld the gift under Lord Macnaghten’s forth head of charity….

Certainly religion has been described as ‘fostering the moral or mental improvement of the community‘ [ Waltz v Tax Comrs of City of New York 397 US 664 (1970)]. But the notion of moral improvement was further upheld as charitable in Re South Place Ethical Society [ [1980] 1 WLR 1565] and there are other Commonwealth cases supporting the charitability of moral improvement. [See Re Wright (1923) 56 NSR 364 (training in higher ideals); cf Cameron v Church of Christ Scientist (1918) 57 SCR 298 at 304 (uplifting of humanity).

Royal Forest and Bird Protection Society Inc – registered charity engaging in political advocacy

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The Royal Forest and Bird Protection Society Inc. is listed alongside the Society for Promotion of Community Standards Inc. (“SPCS”) in The Encyclopedia of New Zealand under its section entitled “Cause Interest Groups“. Both are registered charities with the Charities Commission.

“Forest and Bird”, as it has come to be known in the media, was registered as a charity on 30 June 2008 (Reg. No. 26948) and one of its objectives is identical to that of  the SPCS (CC20268) – fund-raising so that it can advance its objectives. SPCS which was registered as a charity on 17 December 2007 also raises funds (see s. 2[g] of SPCS constitution). Both entities are incorporated societies. SPCS was registered as an incorporated society on 25 September 1975 (Reg. No. 217833).

Forest and Bird objectives are aimed at saving society from the negative impact of the degeneration and degradation of the physical and biological environment, with the consequent loss of invaluable species. SPCS objectives are centred on advancing spiritual and moral welfare and alerting the public to the negative impact of the degeneration and degradation of moral and community standards.

The Encyclopedia entry confirms that Forest and Bird is a lobbying group, heavily involved in political advocacy:

“Scenery preservation societies were formed in the 1880s to maintain town belts and urban reserves, and then began lobbying for the preservation of native forest in general. This led to the Scenery Preservation Act 1903, a landmark measure in protecting New Zealand’s heritage.

“In 1923, angered by the destruction of Kapiti Island’s natural ecosystem, Val Sanderson founded what became the Royal Forest and Bird Protection Society (later Forest and Bird). Since then the society has lobbied governments to protect endangered animal species and wild places. In 2011 its management team included a lawyer, marketing managers and professional lobbyists. It had 50 branches and 70,000 members and supporters.”

Source: http://www.teara.govt.nz/en/interest-groups/3

In the financial year ended 28 February 2011, Forest and Bird received grants and sponsorship totalling $1,459,709. It spent $2,248,348 of its gross income of $5,363,055 on salaries and wages. Its total expenses were $5,830,455 (source: www.charities.govt.nz).

The vigorous lobbying work undertaken by Forest and Bird – an environmental charity group – involves some of its officers having to regularly publicly criticise Ministers of the Crown, company officials, regional councillors and other public officials, over their policies, attitudes and actions. Some may well feel targeted and aggrieved to be singled out. Such ‘victims’ often like to remain hidden in anonymity behind their corporation structure or ministry machinery.

Robust debate is entered into by Forest and Bird and great efforts are engaged in to prod the consciences of some of these officials, to spur them into action to save the environment. Protest action is not foreign to Forest and Bird whose members have been known to trespass on private land by ‘nesting’ high in trees and chain themselves to earth-moving equipment to campaign against the logging of native forests. Such zeal is greatly admired by the environmental community and applauded by SPCS members.

Charities such as Forest and Bird must not be allowed to have their wings clipped by those seeking to stifle freedom of expression and who are determined to curtail robust public debate on ‘sensitive’ issues.

The moral and spiritual welfare of our physical and biological environment is worth upholding, as are the community and moral standards that have been the foundation of our society.