Canterbury Law Review
Charities carry out a crucial function within New Zealand's social framework, serving 'to mend the holes in our social safety net which the government has been unable or unwilling to repair'. Supplementing provision by the government, and breaking new ground in the provision of services for needs yet unmet, the work of modern charities furthers the social objectives of the government. Accordingly, they are afforded substantial fiscal privileges, thereby allowing the government to target resources effectively towards meeting these aims of social improvement.
However, while significant mechanisms exist to aid charities in their quest to right social 'wrongs', a relatively recent judicial development, largely confined to Commonwealth jurisdictions, acts as a substantial check on the way they go about achieving these ends. In the 1917 case of Bowman v Secular Society Ltd, Lord Parker articulated the idea that 'a trust for the attainment of a political object has always been held invalid'. From this dictum, an entire area of charity law has sprung up which deems political purposes as not, generally, charitable purposes. This law disallows from charitable status any trust that purports to achieve a political end, thereby denying any such body the significant advantages afforded to charities. Approaches have developed which allow an 'ancillary' political purpose, if pursued merely as an incidental means to achieving genuinely charitable ends, and such formulations have introduced an element of flexibility to the area. Nonetheless, the resulting distinctions that are drawn in terms of what is 'political' and what is 'ancillary' are extremely fine. These fine distinctions mean the current law has the effect of arbitrarily discriminating against many worthwhile enterprises purely because of the alleged administrative difficulties of separating 'good' political aims from 'bad'. The arbitrary effects of the rule have caused commentators to lament over the fact that when a charity may chance entering the political sphere and adopt a political voice, 'it must be discretely - as a tinkling cymbal, not a sounding brass.' They must tread carefully in the way they convey their message and the methods they employ to tackle their respective social problems, for fear of losing their prized status. As a result, they are unable to partake fully in the democratic process, and cannot secure their charitable objectives in the most effective way possible: by dealing with the source rather than the symptoms of their targeted problems. In effect, charities are expected to continue to work effectively, while the courts withhold the most effective tool at their disposal from them: the ability to advocate changes in the current political and legal conditions affecting society. Various rationale have been advanced to justify the basic rule and the premise upon which it is grounded — that charity and politics are inherently incompatible — yet each justification fails to be completely intellectually satisfying. Indeed, the mere fact that many other jurisdictions go infinitely further than those following English precedent, in admitting organisations seeking changes in the law, to the privileged status of 'charity', gives considerable cause to question the operation of the rule in New Zealand. Consequently, this area of law has been the subject of constant debate over the last few decades, with the principal argument for change being founded on the right to free speech for all, including charities, in a modern democratic society. To date, the judiciary and the legislature ofNew Zealand have resisted attempts to alter the operation of the rule. Nevertheless, in the infant years of the Third Millennium, recent developments indicate that now is the perfect opportunity to argue afresh against the charity/ politics distinction. Landmark cases in both the United Kingdom and Australia involving qualified privilege have recently recognised the public benefit in 'political' free speech, while the English Charity Commission has adopted a more liberal approach towards trusts to remove racial discrimination, now considering them to be for the public benefit. This second development is of significance, as the Commissioners are essentially recognising that society's circumstances are not static, and the law of charities must be allowed to evolve. Additionally, the enactment of the 1998 European Human Rights Act will certainly have implications for English charity law not yet realised in the courts, and while not directly affecting New Zealand law, any judicial statements as to the effect of the legislation will provide substantial food for thought in the New Zealand context.
There have also been important occurrences within New Zealand that signal a climate more conducive to change. In June 2001, the Ministry of Finance launched an inquiry into the adequacy of the present law of charities in its entirety, as there is concern that charitable status is being used by some businesses to cheat the tax system. The inquiry is seeking a solution to make the whole sector more financially effective, and the discussion paper suggests a fundamental reformulation of a 'charitable purpose' more fitting for modern society, as well as mooting the idea of a regulatory body similar to the English Charity Commission to prevent exploitation of the current fiscal framework. Although not bearing directly on the issue of politics, the willingness of the government to entertain the alteration of the very foundation of charity law, by modernising the source of the definition of 'charitable purpose', and introducing a separate body for dealing with charities presents a prime opportunity to re-evaluate the rule against political purposes. Additionally, in the 1998 case of Re Collier, Hammond J pointed out that New Zealand is a modern democratic society, and suggested there was no reason why charity law could not play its part in recognising the rights of freedom of thought, conscience, religion and expression articulated in the New Zealand Bill of Rights Act 1990. Thus, in combination, these developments should be seen as providing the perfect climate for the New Zealand judiciary and legislature to remove the restraint that so extensively limits the effectiveness of charities. By allowing them to participate in the democratic process, charities would be able to realise their true potential as a group of enormously significant social and political actors.
Accordingly, this paper will seek to outline the fundamental concerns regarding the restrictions on the role of charities in society, arising from the rule against political involvement. An examination will be made as to whether the current legal position and approach of the judiciary in determining the validity of a proposed trust for a 'political purpose' are satisfactory, and the underlying rationales will be assessed as to the extent they justify this position. Finally, in considering proposals for change, an attempt will be made to ascertain the most suitable way forward for this area of charity law, in an effort to allow for the most effective participation possible for charities in modern New Zealand society.
Initially, it is useful to survey some of the fundamental concerns presented in 'charity-friendly' commentary. The voluntary sector occupies a unique place in society, dealing directly with all manner of social ills. As such, they are 'strategically located to impact on the nation's economic performance, the quality of life of citizens, and on the political health and direction of the nation' . It is consistently acknowledged that charities are able to provide access to the democratic process for viewpoints within the community that would otherwise be left voiceless. Charities also constitute a potentially rich resource for consultation by government policy-makers seeking effective solutions to various 'political' problems. Furthermore, legislative activity and influencing public opinion are legitimate means by which a charity can pursue its purposes, 'for how else are compassionate objects to be achieved, other than by the exertion of moral pressure through influencing public opinion?' The ever-broadening scope of legislation, and the willingness of governments to regulate matters outside the accepted sphere of government, dictate that there are few if any subjects that might not at some time become the subject of political propaganda. Consequently, it follows that more and more issues will sit beyond the reach of charities that wish to attack the cause rather than the symptoms of the problem.
The dissent of Lord Reid in IRC v Baddley stated, 'political purposes are perhaps the most important of all public purposes'. Yet, this rule against political charities deprives society of both aid and leadership by tending to make charities overly timid in the fight for public support, fearing advocacy in 'political' matters will lose them the benefits associated with charitable status. Arguably, in an enlightened and mature democracy, benevolent organisations should not have to choose between freedom of speech and financial benefit, as the law should be able to uphold views which are diametrically opposed, provided they benefit a sizeable body of the public. Thus, given the potential they have to better society, an indisputable public policy reason should exist if they are to be deprived from having free access to the legislative process, but to date no such justification has been offered.
A proper analysis of how this area may be improved must begin with an overview of the present legal position of charities in New Zealand. Charitable status is highly sought after, principally because of the significant legal and fiscal advantages not otherwise available to private trusts, which fail to satisfy the necessary criterion. Legally, charities avoid the necessity of having a direct human beneficiary to enforce the trust, instead enjoying the privilege of enforcement by the Attorney-General. Charities also enjoy exemption from the 'certainty of objects rule'; this demands that beneficiaries be sufficiently identifiable so trustees can appreciate the precise nature of their obligations. Additionally, charities are not subject to the 'perpetuity' rule with otherwise limits the duration of a trust. Charities also receive fiscal benefits through the tax system. The charities themselves are exempted from income tax, individuals receive a rebate for donations to charities, while companies receive a donation deduction, and gifts to charities are exempt from gift duties. The fundamental legal principles that determine the existence and nature of charitable status derive from English law. Firstly, the trust must be for an exclusively charitable purpose with the initial test being whether the trust falls within the letter or spirit of the preamble to the Statute of Charitable Uses 1601. Four classes of charities have been rationalised from this preamble, comprising 'trusts for the relief of poverty... the advancement of education... the advancement of religion... and for other purposes beneficial to the community not falling under any of the other heads'. Once it is established that the trust comes within one of these categories, the trust must then promote a public benefit of a kind recognised by the courts. Significantly, what constitutes a public benefit is a question of law to be decided on evidence before the judge. In satisfying these requirements, a trust may be properly admitted to charitable status. While jurisdictions such as England have mechanisms in place for the public notification or registration of charities, in New Zealand a charitable trust can be established and begin dispensing its tax-free profits to charitable purposes without formal approval from the courts, although to confirm its tax-free status, an organisation must get clearance from the Inland Revenue Department. As a result, most of the case law on charitable trusts involves High Court challenges to a ruling of the Inland Revenue that a particular organisation is not a charity. This means that there may be a distinct lack of cases illustrating the problems with the current approach, in contrast to jurisdictions such as England and Australia. However, this does not mean that the problems illustrated in the overseas case law are not critical for the role of charities in New Zealand. Any change to the regulation of such bodies, as proposed by the current government inquiry, will almost certainly bring identical difficulties. The purposes of such charities will be examined with far more vigour, and charities will be constantly forced to look over their shoulder for fear of losing charitable status if it is found they have ventured too far into the 'political' sphere. Thus, while it may not be completely desirable to rely so heavily on foreign case law, it is extremely useful in highlighting potential issues for New Zealand charity law that currently lie dormant.
When expressed in the abstract, the rules restricting political purposes are quite clear. First, a trust for the attainment of a political purpose is not a charitable purpose. Likewise, to support a political party or further its principles fails and, as a corollary, the promulgation of particular political views ('propaganda') is not charitable. Political propaganda in the guise of education is invalid, while a trust for the education of the public in or in accordance with one particular set of political principles also fails. Nevertheless, a trust for the education of the public in forms of government and in political matters generally can be charitable. Importantly, the expression 'political purpose' is not confined to party politics. It includes the promotion of any change in law, any change in governmental policy, or the reversal of particular decisions of a governmental authority. To promote the maintenance of the existing law, or a particular line of political administration and policy is also a political purpose. Similarly, 'trusts to oppose a particular change in the law or a change in a particular law' are not charitable. Equally, a trust to procure changes in the laws, government policy or of particular decisions of governmental authorities in a foreign country will not be charitable. However, a trust to promote the enforcement of an existing law may be charitable if its effect is to promote a charitable purpose. A trust to promote peace, international friendship or sympathetic understanding between nations or groups, except in the interests of racial harmony within a nation, is also not considered charitable. At a glance, these principles appear straightforward. However, in practice the distinctions between what may and may not be 'political' have become extremely tenuous in a number of areas and, as such, it is very difficult to predict with certainty how a particular 'trust' may fare. Consequently, New Zealand bodies purporting to be charities must be careful in phrasing their purposes. For example, two decisions illustrate the blurring between illegitimate political promotion and a legitimate trust to further education. In Re Koeppler 's Will Trusts, an organisation that staged conferences with the purpose of promoting increased co-operation between European states was deemed charitable. Of significance are the factors that led to the interpretation of the gift as educational. The conferences looked to improve the minds of participants by expanding their wisdom and capacity to understand, with the conferences benefiting from the knowledge of experts who were participating in order to instruct and learn. In addition, the subjects at issue were recognised as 'academic' subjects, and were discussed in a manner familiar in places of higher education. Thus, when the discussion touched on political matters, the activities of the trust were interpreted by the court as 'constituting no more than genuine attempts in an objective manner to ascertain and disseminate the truth'.
In contrast to Re Koeppler is Southwood v Attorney General. The aim of the organisation in question was 'to advance public education on militarism and disarmament and to develop transnational links for education on demilitarisation'. The organisation proposed holding a series of briefings and seminars to question the new forms of militarism arising in the West, and to propose alternative policies to achieve disarmament. However, the Charity Commissioners, the High Court and finally the Court of Appeal all declined to uphold the trust as an educational charity on the basis the promotion of disarmament was a political purpose. Despite targeting an identical audience, ostensibly fulfilling the four criteria elucidated in Re Koeppler, and despite the observation by Chadwick CJ that the objects clause was 'redolent with the flavour of charity', charitable status was still refused. This refusal was on the basis that rather than constituting attempts to provide the public with neutral information on which to form their own views, the trust looked to promote disarmament solely through their own views. Significantly, this was determined only after the examination of extrinsic evidence including a background paper submitted during the initial registration process, and a number of briefing papers presented by the organisation in the form of public lectures. It seems reasonable to take into account the activities of a charity, past and proposed, as an aid to interpreting purpose clauses. But it is likely that consideration of such evidence would run the risk of the courts focusing not solely on the charitability of an organisation's purpose, but on the nature of its activities and 'factors such as their effectiveness, efficiency and professionalism'. Theoretically, such factors should not influence a strictly legal test of charitability. In addition, it is submitted that consideration of the effectiveness of a charity's activities allows the court to engage in an assessment of the practical operation of the charity, which in reality is not within their jurisdiction.
Overall, these cases illustrate the way factors such as prior activities of the charity, and the tone and style of the trust document play a far larger role in determining 'charitability' than is currently acknowledged. Thus, when such subtle distinctions must be made, this arguably indicates that a fresh look should be taken at the rationale forming the basis of the decisions.
Likewise, the approach adopted by the New Zealand courts following the English jurisdiction, seems at face value to be logical, flexible and fair - demanding that a purpose characterised as political will only have a vitiating effect if it is a main purpose of the gift or institution. This assessment requires attributing weight to objects by reference to the nature, terms and activities to which the gift is directed or the institution engages in. Moreover, practically, much will depend on whether 'political object' 'is so pervasive and predominant as to preclude its severance from other charitable objects or subordinate them to a political end'. This effectively allows charities to engage in limited campaigning for political change, providing it is an incidental means to achieving a genuine charitable end.
The use of the approach in New Zealand is evidenced in cases such as Molloy v Commissioner of Inland Revenue. In that case, the Society for the Protection of the Unborn Child was not afforded charitable status, as its main object was to preserve the current law on the subject and this vitiated its charitable purpose.
Prima facie, the approach may seem advantageous, allowing reasonable access to the democratic process, as the mere fact that political means may be employed in furthering non-political objects does not necessarily render a trust invalid. However, this supposed 'distinction' between 'activity' and 'purpose' has been criticised as inherently unreliable. Forder argues the test fails to provide 'a sensible dividing line' which is easy to anticipate prior to a decision, and it deprives many worthwhile causes of charitable status, even though the intention of the trustor's intention can still be achieved without needing law reform. Ultimately, judges have considerable latitude in distinguishing between a main and a subsidiary purpose, and a glance at the case law illustrates how difficult it is to predict when an object of law reform will be found in some cases and not others. For example, in Commissioners of the Inland Revenue v Temperance Council of Christian Churches of England and Wales and Re Hood both trusts were concerned with promoting temperance. In the first case, the trust was found to have the object of law reform, while the second, couched in very similar terms and decided only four years later, was admitted to charitable status.
More fundamentally, the effect of distinguishing between a charitable purpose and ancillary political activity 'enables a conceptual limit to be placed on the amount and type of political activity', even though the 'ancillary' formula is not quantitative in terms of the amount of resources to be applied in the activity. Essentially, 'the ancillary political activities exception only serves to confuse the issue and leads to false distinctions being drawn between purposes and activities', and this is the cause of the often quite arbitrary results. Significantly, even the English Charity Commissioners admit 'the dividing line between proper debate in the public arena and improper political activity is a difficult one to judge'. Accordingly, it appears there is a case to suggest that the current state of the law and the general approach taken by the judiciary is less than satisfactory.
Nonetheless, the present situation may be justifiable depending on the underlying rationales. As such, it is necessary to undertake an analysis of the merits of the rationales offered by case law, and other legal commentary, as to why 'political purposes' cannot constitute charitable purposes.
The first rationale offered as to why a political purpose is not charitable was in the initial dictum of Lord Parker. He reasoned that 'the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure a change in the law is charitable.' This reasoning was employed in other instances to justify why trusts promoting a change in government policy or the maintenance of the present law, and trusts to oppose a change in the law could not be regarded as charitable. At the heart of this rule is the objection the courts are not charged with or positioned to make political decisions. First, this objection is raised because the courts do not have sufficient means of judging as a matter of evidence whether the proposed change will benefit the public. Secondly, even if they could, it must still be decided that the law as it stands is right because to do otherwise would usurp the functions of the legislature. Finally, adjudicating as to which purposes would be of public benefit would necessarily compromise the political neutrality of the judiciary.
However, although regarded by many as the primary rationale for the rule, it has been subject to substantial criticism. It seems bizarre that in cases involving charities falling within the fourth category, courts must determine whether an activity is or is not beneficial to the community, but they refuse to make a similar decision as to whether any of the aforementioned 'political purposes' are beneficial to the community. This position is especially strange in relation to deciding whether or not the present law is favourable . This contradiction is further stressed by the fact that courts, in assessing benefit to the community under the fourth head, will counterbalance any such benefit against detrimentto the community from the object in question. In Re Jenkins' Will Trust, the courts capacity to engage in this counterbalancing exercise was explicitly rejected:
[T]he court cannot weigh the benefits to the community which result from using animals for vivisection and research against the benefits which would result to the community preventing such practices.
This contradiction is given further impetus by the conflict in case law, where in the National Anti-Vivisection case the court had no difficulty in making such a judgment negatively, determining that the law change sought was not in the public interest. The justification that it is for the legislature alone to say whether a change in law is beneficial is similarly described by Chesterman as archaic, who likens it to Lord Reid's 'fairy tale' that judges never make the law, but only declare it. He argues that to describe such trusts as trusts 'to change the law' is misleading as it conveys the idea that nothing more than a decision by the trustees would instantly pass the appropriate legislation, when this is clearly not the case. Forder is similarly puzzled by the inability of the courts to determine public benefit. She points out the inconsistency that they appear to have no difficulty in finding in Incorporated Council for Law Reporting in England and Wales v Attorney General that a trust in relation to the development of the law is for the public benefit, yet are unable to declare the same for law reform. Sheridan makes the point there are few people, practically speaking, who would be better equipped to assess whether a change of law would be publicly beneficial. This is also illustrated by the fact that judges in countries such as France and Germany have no difficulty in finding campaigning bodies to be for the public benefit. Accordingly, it is hard to see why judges in New Zealand should. These criticisms bring to the surface the valid argument that for judges to make such determinations would cause the public to call into question the political impartiality of the judiciary, and may well result in a lack of confidence in the legal system. It is of course entirely reasonable for judges to feel that by ostensibly tolerating charitable status for causes with which they disagree, they fear they may be allied with those views. Nonetheless, it is indeed difficult to see what sets the judiciaries of countries such as England and New Zealand apart that their political impartiality is so fragile that it would be compromised when other courts seem to feel no such threat. Finally, Dal Pont notes when examining trusts for religious purposes that no inquiry is made as to whether they are beneficial to the community, as it is again suggested that the courts have no such means of judging. In that situation a simple approach is taken, where cases at the 'extremes' are rejected: specifically those cases where there is proof the trust is likely to be detrimental to the community.
A second rationale offered is that 'the law could not stultify itself by holding that it was for the public benefit that the law should be changed'. Picarda cursorily disposes of this justification with the statement that 'recently the judiciary has not been so reticent in suggesting that the law may be in need of reform' . However, he is supported by comments of Hammond J in the recent New Zealand decision of Re Collier, who stated 'it is commonplace for Judges to make suggestions themselves for changes in the law today, whether in judgments or extra-curially'. Santow J also makes the point courts are increasingly faced with political issues, citing decisions for withdrawal of life support from an unconscious patient and issues of racial and gender discrimination among others. He goes on to suggest that given this fact, this rationale lacks grounding if political issues are approached objectively and with proper evidence.
More fundamentally, it is without doubt that 'the whole essence of the common law is that judges participate and are engaged in the development of the law by change'. The legal system provides significant mechanisms for legal change, via the theory of stare decisis — where previous decisions need not be followed if they are found to be wrong — and the common occurrence where ajudge must choose which of two conflicting authorities to apply. Additionally, the basic assumption made by the government when a law reform commission is set up is that it is possible for improvements on the current law. Once again, some other jurisdictions have no difficulty in finding it valid to uphold a trust for changing the law, and even in countries such as England and New Zealand, the argument of 'stultify[ing]' the law has not always held sway. In the early Canadian decision of Farewell v Farewell, it was found that in a free society there was nothing illegal about a trust to promote law reform and, importantly, the law would actually stultify itself to hold otherwise.
Another primary rationale offered to justify the rule against trusts regarding law reform, is founded in the tax concessions and other fiscal benefits available to charities. There is concern that allowing what may be perceived as 'political' organisations to exploit these concessions may compromise the neutrality of the Treasury. The Treasury must replace those tax losses resulting from deductions out of other taxes without damaging public confidence in the integrity of the system. Clearly, it is difficult to rationalise a tax subsidy for a political purpose that a large portion of the population does not support. The fact there is no way of knowing which campaigns taxpayers would support and which they would not compounds the problem. Additionally, the English Charity Commission argue the restraint on political activity reflects public opinion that a charity should not 'waste' time, donations and fiscal concessions by being political. This rationale has been strongly criticised as it ignores the way various countries subscribing to the rationale afford similar fiscal concessions to other bodies able to engage in politics. For example, taxpayers in both Australia and the UK receive a deduction for contributions made to a political party or gifts to independent members, and commercial enterprises receive subsidies from the Treasury free from any restrictions in engaging in the political process. More importantly, the argument overlooks the government's own willingness and ability to fund programmes that may not meet with the approval of even the majority of the public. Sprince also points out this fiscal argument loses much of its impact when the 'Western' system is placed alongside the models of continental Europe which afford comparable concessions, but without requiring 'political silence'.
The English Charity Commissioners have emphasised that allowing charities with a political purpose 'might unwittingly distort the democratic process by subsidising bodies whose true purpose was to campaign not so much for their beneficiaries as for some political end'. Todd argues that promoting political objectives would necessarily involve a propagandist element that would be biased in favour of one side of the argument. Thus, the distortion of the democratic process would occur through 'the promotion of biased, unbalanced information and policies, the use of undue or emotive public pressure rather than reasoned argument, or through an overt emphasis upon a single issue that may have the effect of diverting political debate from the main issues of the day'. Especially regarding controversial social issues such as abortion and pornography, many attempts to encourage a particular view tend to abandon objectivity in favour of political propaganda. This justification is fundamentally criticised by commentators who question why charities more so than profit-making organisations are likely to have anarchistic tendencies. To allow charities a political voice has even been described as a 'recipe for anarchy', as all manner of causes could disguise themselves as charities and use the their legitimate status as a front to espouse messages detrimental to society's interests. Those who subscribe to this argument then see the logical consequence as damaging to both the charities themselves and the framework in which they operate. Any political actions undertaken would inevitably be perceived as approved by the government specifically because they have transpired with the backing of an established legal framework, and any particularly controversial acts or agenda could well bring disgrace on the framework and the public credibility of charities in general. This undermining of the legitimacy of the whole structure could well serve to alienate disillusioned donors. However, Burt argues that regardless of whether evidence exists to support this view, to remove the decision as to what extent they engage in the political process from the control of the charities themselves is 'a significant encroachment on their managerial autonomy, and more fundamentally, it is discriminatory against the beneficiaries, members and supporters'. Interestingly, when the Charity Commission investigated Oxfam, the trustees presented evidence that strongly suggested their campaigning activities actually generated support for the work of the charity. Perhaps the most convincing counter-argument is the fact that for almost three hundred years, charity law prospered free from any such legal controls, due to the generosity of benevolent citizens. In light of this, one must ask the question that why should people now begin exploiting charities in such way, and perhaps 'the picture of people acting in irrational and antisocial ways has been greatly overdrawn'. Also important to note is the fact charities are well aware it is necessary to temper the way in which they convey their message, in order to retain or increase support for their cause rather than alienating donors. As such, this justification is perhaps an unnecessary concern.
The decision of McGovern v Attorney General, which supports the New Zealand authority of Re Wilkinson, succinctly articulated the reasons why advocating a change of law or policy in a foreign country should be disallowed. There are the previous dangers of usurping the functions of the legislature or subjecting the political impartiality of the judiciary to question. Again, the inability of the court to judge whether a proposed change would be for the benefit of either the foreign or the domestic community, because of a lack of knowledge or evidence of the possible effects, means such a trust 'can never be regarded as for the public benefit'. As well as being able to reiterate previous criticisms, Nobles convincingly disputes this justification, pointing out that evidentiary difficulties as to public benefit are not limited to trusts to change the laws of a foreign country. The activities of an agency looking to effect social change in a foreign country — such as providing education in Third World countries — may undermine traditional lifestyles. However, even if it was certain that indigenous people would benefit, arguably it is impossible to identify all the international repercussions to be sure the trust would result in some benefit to the originating country. Thus, Nobles argues such trusts remain valid because the courts tend to disregard such difficulties. But, perhaps more important, is the justification that upholding such a gift could prejudice relations with that foreign country, the risk or extent of such an occurrence requiring executive rather than legal judgment. Weiss points out many countries including the United Kingdom 'have not hesitated to hold, inter alia, that certain confiscatory acts of foreign states affecting property rights were in breach of international law'. This seems to beg the question: why should humanitarian acts or purposes be subject to different considerations?
Overall, these justifications can be seen to be the subject of more fundamental criticisms. In such instances, it is almost inevitable the law in issue pertains to human rights. For example, in McGovern the two main objects of the trust were 'attempting to secure the release of prisoners of conscience' and 'procuring the abolition of torture or inhuman or degrading treatment or punishment'. As such, Weiss points to the current international climate concerning the furtherance of fundamental human rights as a basis for a very persuasive critique of this area of law. He argues that it should not be acceptable that 'an appraisal by a domestic court of the observance of human rights standards in a foreign country could either embarrass a government or cause it to incur international responsibility'. An overly technical approach to human rights unavoidably impedes the successful execution of worldwide substantive standards, and in the current international climate, a state should not speak with different voices in respect of such an important issue. He concludes with the idea that as part of the 'liberal' Western world, countries such as New Zealand must disregard the view that only the executive should implement such standards and the idea that human rights can be relative to place and circumstance.
Although there is somewhat dubious authority as to its validity as a charitable purpose, the promotion of peace is generally seen as political. This view exists because when seen in relation to a particular area of conflict, it is mooted that a political decision must be made as to what terms peace will be on, and clearly this cannot benefit all those involved. However, in Re Blyth Thomas J held the 'elimination of war' should be regarded as within the spirit and intendment of the all-important preamble, and suggested that such an object could be seen as beneficial to the community in encouraging changes of attitudes. He noted it is difficult to find any logical basis of distinction between gifts for the elimination of war and those dealing with promoting the safety of a country against war that have been held as charitable for many years. Similarly, the trust for world peace in Re Collier failed, but the tenor of the judge's decision indicated that had the wording been to achieve world peace ''simpliciter', he would have upheld the gift. Dal Pont argues the approach that asks 'what terms?' confuses the object with the manner of achieving that object, and that overall it is difficult to see how either world peace, or even ending a particular war, could not be beneficial overall for the entire community.
Hence, it seems possible to declare with conviction the rationales underlying the rule against charities pursuing a political purpose are far from satisfactory. A number of potential approaches have been mooted to accommodate some of the more specific criticisms. Dal Pont suggests in relation to deciding whether the present law is favourable, the courts should presume the current law represents what is favourable for the community, 'as in making this assumption the court would reinforce rather than subsume the role of the legislature'. Unfortunately, the implication is that attempting to argue in favour of allowing trusts seeking to change the law would directly conflict with the basis of this suggestion. The approach taken in relation to religious trusts — simply rejecting cases at the extremes — is a feasible proposal in terms of circumventing the difficulties relating to determining 'public benefit'. It neatly avoids the court having to adjudicate on matters of public benefit they may be 'unequipped' for, and there seems no reason why this approach could not be adopted. Alternatively, Santow J recently suggested inPublic Trustee v Attorney General that the courts could restrict themselves to determining whether a change in law is 'capable of’ being in the interest of the public, as this would allow the judiciary to avoid trespassing into the realm of the legislature. Both of these suggestions provide feasible alternatives that would allow the courts to recognise political purposes. Unfortunately, they do not address concerns such as compromising the impartiality of the judiciary and, as such, even if they were adopted, they are unlikely to see any real improvement in the current situation. In terms of trusts seeking change in foreign states, suggestions have been made that would see basic humanitarian objects upheld despite being phrased in terms seeking a change in policy or law, due to the extent of their social merit. In other words, 'the courts should find conclusive evidence of benefit to the community from prevailing international norms of basic human rights'. Alternatively, Forder advocates the adoption of Lord Scarman's approach in his dissenting judgment in Ahmad v Inner London Education Authority. Lord Scarman suggested that principles within international conventions be used as an aid to construing domestic law rules and Forder proposes that in the same way, the existence of international human rights obligations could be used as an aid to interpretation of the rule of public benefit in charity law. The proposals are very similar and have the potential to effect positive change on the current position for 'foreign' trusts. However, while these may appear to be workable solutions, none constitute a completely effective means, ridding the rule of its often arbitrary and discriminatory effects. As a result, it is necessary to question whether the basic premise of the rule is well founded.
The basic assumption at the heart of the rationales is the premise that political aims have the potential to be discretely segregated, 'and that such aims would always be inherently incompatible with charitable ones'. By characterising the two areas as distinct, the courts have been able to characterise many of their justifications as issues of justiciability. This has provided the courts with an expedient way to avoid ruling on contentious issues. However, this premise simply serves to 'obscure the environment in which decisions of charity law are made'. In essence, the premise is inherently flawed because it fails to recognise the true nature of charity. Dunn's characterisation of the intrinsic nature of 'politics' and 'charity' is the most recent, and explains in a simple but extremely effective way why it is naïve to attempt to distinguish the two concepts. She characterises politics as 'concerning a process where the differing, often conflicting needs and interests of individuals, communities or nations are reconciled, accommodated or furthered' — essentially a means of acting for the public benefit. Similarly, charity is concerned with addressing the needs of society and helping the common good. It is through the prevailing social context, in turn partly determined by political considerations, that the common good, and thus what it is charitable, is defined. As such, the two spheres share much common ground, with their unified concern for public benefit. It follows, then, that the two spheres are complementary, and to force them to act in isolation is completely at odds with their inherent nature. Thus, 'charities cannot and should not be expected to operate in isolation from politics'.
Accordingly, it is vital that any change in the approach to the rule against politics takes into account the flaw in this basic premise. Rather than basing any restriction 'upon fears of where an overt political connection may lead' , the law must find an effective way to utilise the inherent association between politics and charity to allow charities the political voice they deserve. Commentators have offered a number of solutions to date, and the challenge facing the New Zealand judiciary and legislature is in unearthing the particular formula that would be of most benefit to all involved. In Public Trustee v Attorney General Santow J suggested gifts or institutions could be charitable if their object was 'to introduce new law consistent with the way the law is tending'. Unfortunately, this approach may simply replace one 'arbitrary' approach with another, as its application would require an assessment of the way the law is tending and this is may be as equally as vague as the current approach. Another suggestion has been that a simple rule allowing charities a political voice should be introduced, and the success or otherwise of a society could then be left to the 'market'. Overall, the reality of public opinion would see bodies inevitably fail, if they held unpalatable views, or advocated ideals that would not truly benefit society. However, this view still holds some reservations in terms of adequately protecting against the dissemination of propaganda or unpalatable political acts. Thus, while this view takes the inherent nature of charity and politics into account, it fails to address the requirement that the legal framework, within which these charities operate, must retain its credibility and legitimacy in the eyes of the public. Hackney has mooted the idea the most effective way of addressing concerns of judicial and legislative impartiality is to remove the entire procedure from the authority of the courts, and instead create a separate body for determining questions of charitable status. It is acknowledged that judges cannot be expected to please all political views, and entrusting the task to another body would allow the all-important factors of social and political context to be legitimately taken into account. The need for debate on controversial issues would thereby be recognised. Such an approach brings the advantage of flexibility to decisions of charitability. However, Dunn rightly points out that despite this disadvantage, anew body, although being able to take new factors into account, would still encounter the problems the courts currently face, particularly those of partisan politics and construing public benefit. This suggestion does, however, go some way in recognising the need for public debate on political issues, which can be seen as the initial step in the argument for allowing charities freedom of speech.
Alternatively, Dunn suggests redefining the requirement of 'common good' or public benefit to capitalise on the fundamental link between charity and politics. Nonetheless, she notes the challenge will be to do this without degrading 'the notion of charity to an unacceptable political realm'. Similarly, Burthas suggested that provided organisations can demonstrate 'benevolent intention' that they have not been created for financial gain, and that they are not criminal in nature, charitable status should be available without limitations on political activity. This similarly implies a need for a redefinition of the common good to accommodate the extension to 'benevolent intention'. In either case, a redefinition is advantageous as it removes the current artificial severance of the two spheres, and deals satisfactorily with the problem of propaganda or partisan political activities by seeing them necessarily fail the test for common good. Unfortunately, while this suggestion is attractive, the actual reformulation of the public benefit requirement would still remain problematic.
The English Charity Commission has made a suggestion which has received recent support by the Supreme Court of Canada: a charity can engage in a political activity if there is a reasonable expectation the activity concerned will further the stated purposes and, so, benefit the beneficiaries to the extent justified by the resources. This would allow charities to carry out activities such as commenting on controversial public issues and advocating law changes, so long as the pursuit of the charitable purpose remains paramount. This inroad into the Bowman rule is revealing, as it impliedly recognises that political means can be complementary to the pursuit of charitable purposes. Unfortunately, it also brings with it the difficulties of assessing the extent to which the activities could be justified by the resources, and this has the potential to introduce another opportunity for arbitrary decision-making. Notably, suggestions from the Charity Commission are important as by its very nature and purpose the Commission is capable of reflecting current community values with far more rapidity than the English courts.
The approach of the United States is perhaps the most radical, where the complexities of the rule against politics are avoided by the recognition that law reform and public participation in the legislative process are themselves beneficial for the public. Therefore, provided the principal purpose is charitable, advocating political change itself is of 'public benefit'. The position is still subject to complex limits on the amount of funds and resources that can be dedicated to the advocacy to ensure that charitable purpose remains the primary focus. Perhaps in light of the above arguments regarding the inherent nature of charity, it means this solution can be seen as rather artificial.
While the approach of the United States may not be perfect, a more permissive approach to the advocacy of political change, and the general acceptance of the free speech argument, would significantly loosen the restraints on charities by recognising the common ground shared between charity and politics. More specifically, this would avoid the problem of determining public benefit. This 'attitude' would also benefit from the adoption of a 'principled approach' to determining charitable status, as advocated by Lewis in her analysis of Canadian charity law. She suggests the values of society rather than the judiciary or government should decide principles by which it can be determined who is deserving of charitable status, and this would free the courts from the rigidity of 'specious legal reasoning'. Underthis approach, popularity would not be the benchmark for charitable status although a common view on some matters would be necessary, thereby ensuring the promotion of illegal or antisocial behaviour such as hatred or violence could never be charitable. Additionally, she advocates regular reviews to ensure the charitable purpose remains paramount in terms of the professed benefit reaching the recipient. The legislature would do well to consider Lewis' suggestions, as allowing society to determine which organisations they want to see afforded charitable status avoids arguments such as impartiality, and provides what would be an effective obstacle to inherently 'unwelcome' organisations. As such, it is submitted that changes along these lines would constitute the most effective solution for New Zealand charity law. Arguably, international developments indicate amove towards recognising the value of free speech for all, and there is no reason why this cannot extend to charities. A court of the United Kingdom has recognised in Reynolds v Time Newspapers Ltd that qualified privilege now attaches to statements contributing to the 'flow of information to the public concerning matters related to the public life of the community and those who take part in it'. In the Australian case of Lange v Australian Broadcasting Corporation a similar basis for qualified privilege was recognised, 'provided there has been a reasonableness of conduct attending publication'. Thus, in the domestic sphere, public discussion on political matters has been recognised as of public benefit. The argument then follows that there is no reason why this development cannot now be extended to the realm of charity law.
Additionally, Articles 19 and 29(2) of the Universal Declaration on Human Rights state that everyone has the right to freedom of opinion and expression, subject only to limitations:
as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others, and of meeting the just requirements of morality, social order, and the general welfare of a democratic society.
Similarly, Articles 19 and 20 of the International Covenant on Civil and Political Rights provides the right to hold opinions without interference and the right to freedom of expression. Again, these rights are subject to limits such as the protection of the rights and reputation of others, and the protection of public morality, while any propaganda for war or advocacy of anything that would constitute 'incitement to discrimination, hostility or violence shall be prohibited by law'.
As a signatory to these treaties, New Zealand could look to these documents of international law to proscribe the appropriate limits on political speech for charities, in the same way Forder has suggested that principles of international law could be used as an aid to interpretation of the rule of public benefit in charity law. Finally, of crucial significance is the fact this suggestion is supported by recent judicial comment in the High Court. In Re Collier, Hammond J referred to the rights of freedom of thought, conscience, religion and expression, and he suggested that 'we live in an age which enjoys the supposed benefits of [these rights]. Should not the benefits be real in all aspects, including the law of charities?' This suggests there is no reason why the law of charities should not play its part in realising the benefits of the rights, as set out in the New Zealand Bill of Rights Act 1990. Significantly, such comments can be seen as signalling a readiness for the judiciary to re-evaluate arguments of free speech in the New Zealand context.
In the context of modern New Zealand society, charities have the potential to act as catalysts in encouraging the long-term eradication of social problems. However, the current rule restricting the pursuance of political purposes ensures this potential remains unrealised as it withholds from charities the most effective tool at their disposal: advocacy for political change. While this could be justified if there were a convincing public policy reason demanding such a rule, it seems that none of the rationales offered as the basis of the rule stand up to scrutiny. In order for an improvement in the present position, it is vital the flawed premise underlying the rule — the inherent incompatibility between charity and politics — be exorcised from this area of law. Only then can the true position of charities in New Zealand society reflect that which it should in a modern democracy of the twenty-first century.
Fortunately, it seems there are a range of possibilities available to the legislature and the judiciary. While the vast bulk of New Zealand's charity law has its origin in English decisions, there is no reason why New Zealand cannot seek to benefit from the approaches and suggestions offered by other jurisdictions further afield, and within the ambit of relevant commentary. Although there is merit in all the aforementioned proposals, it is submitted that a recognition that allowing freedom of speech in political matters is of itself of public benefit, offers the solution which would most effectively embrace the inherent connection between charity and politics. Consequently, a change based on this fundamental acknowledgement would allow charities to realise their potential to effect widely beneficial social change. The current inquiry by the Ministry of Finance is the perfect opportunity to enact legislation embracing this need for fundamental change.
[*] Nicola Silke is a student in her final year at the University of Canterbury. This paper was written as part of the undergraduate Honours programme.
 D J Lewis, 'A Principled Approach to the Law of Charities in the Face of Analogies, Activities and the Advancement of Education' (2000) 25 Queen's Law Journal 670, 679.
  AC 406.
 Ibid 442.
 This is generally in Commonwealth jurisdictions such as England, Canada and Australia.
 E Clark, 'The Limitation on Political Activities: A Discordant Note in the Law of Charities'  46 Virginia Law Review 439, 460. Just over two decades after the initial dictum of Lord Parker, Sir Owen Dixon stated that the law dealing with 'the distinction between charitable purposes and political objects is in an unsatisfactory state': Royal North Shore Hospital of Sydney v Attorney-General (NSW)  HCA 39; (1938) 60 CLR 396, 426. In that case, he was confronted with a trust in the educational sphere, and saw the law as unclear in distinguishing between illegitimate promotion and legitimate education.
 G F K Santow, 'Charity in its Political Voice: A Tinkling Cymbal or a Sounding Brass' (1999) 18 Australian Bar Review 225, 258. This was also suggested in earlier commentary by Professor Elias Clark, where he indicated charities must speak in 'muted voices' to avoid losing the benefits of charitable status.
 H Picarda, The Law and Practice Relating to Charities (1999) 175.
 Reynolds v Times Newspapers Ltd  EWCA Civ 1172;  3 WLR 862; Lange v Australian Broadcasting Corporation  HCA 25; (1997) 189 CLR 520.
 Charity Commission of England and Wales, Political Activities and Campaigning by Charities (CC9) (1999) 5. As the Commission by its very nature and purpose is capable of more rapidly reflecting current community values than the courts, any suggestions they make are likely to hold significant sway.
 Santow, above n 6, 256.
 The Charity Commission is currently in the process of considering what effect the legislation will have on the law: The Charity Commission email@example.com, email, 22nd May 2001.
 Similarly, the Australian government is at the end of completing an inquiry to ensure the legislative and administrative framework in which charities function is appropriate to the modern social and economic environment. J Howard, Inquiry into Charities and Related Organisations, Press Release, (Canberra, Australia) September 2000, http://www.pm.gov.au/.
  1NZLR81.
 C Rickett, 'Politics and Cy-Pres' (1998) New Zealand Law Journal 55.
 E Burt, 'Charities and Political Activity: Time to Re-Think the Rules' (1998) Political Quarterly 23.
 Santow, above n 6, 256.
 G Dal Pont, Charity Law in Australia and New Zealand (2000) 204.
  UKHL 1;  AC 572.
 Ibid 604.
 Burt, above n 15, 30.
 M Chesterman, 'Foundations of Charity Law in the New Welfare State' (1999) 62 Modern Law Review 333, 345.
 This is known as the 'beneficiary principle': Morice v Bishop of Durham  EWHC Ch J80; (1805) 10 Ves 522.
 Leahy v Attorney-General for New South Wales  UKPC 1;  AC 457. This is the case even if a charity is couched in terms of a purpose.
 Income Tax Special Purposes Commissioners v Pemsel  UKHL 1;  AC 531.
 Income Tax Act 1994 (NZ) s CB4(1)(c), (e).
 s KC 5(1).
 s DJ 4.
 Estate and Gift Duties Act 1968 (NZ) s 73(1).
 Income Tax Special Purposes Commissioner vPemsel  UKHL 1;  AC 531 (MacNaughten L).
 National Anti-Vivisection Society v IRC  UKHL 4;  2 All ER 217, 220, 236, 238 (Wright and Simonds LL).
 M Ross, 'Charities Grab Disguises the State's Real Intention', National Business Review (New Zealand), July 27 2001, 30.
 Bowman v Secular Society Ltd  AC 406, 442; National Anti-Vivisection Society v Inland Revenue Commissioners  UKHL 4;  AC 31, 49, 62.
 Royal North Shore Hospital of Sydney v Attorney-General  HCA 39; (1928) 60 CLR 396, 426 (Dixon J); Re Collier (deceased)  1 NZLR 81, 90 (Hammond J).
 ReHopkinson  1 All ER 346.
 Ibid. See also Re Bushnell  1 All ER 721.
 Re The Trustees of the Arthur McDougall Fund  3 All ER 867.
 National Anti-Vivisection Society v Inland Revenue Commissioners  UKHL 4;  AC 31, 51, 61.
 McGovern v Attorney-General  1 Ch 321, 336-9 (Slade J).
 Re Hopkinson  1 All ER 346, 350; Re Koeppler's Will Trusts  Ch 243, 260-1; Molloy v Commissioner of Inland Revenue  1 NZLR 688.
 Re Koeppler's Will Trusts  Ch 243, 260 (Gibson J); Re Hopkinson  1 All ER 346 (Vaisey J).
 Re Wilkinson (deceased)  NZGazLawRp 96;  NZLR 1065; McGovern v Attorney-General  Ch 321.
 Re Vallance (1876) 2 Seton's Judgments (7th ed) 1304.
 In Re Strakosch  Ch 529, it was held that a trust to appease racial feeling within the community was political. However, the Charity Commissioners in England have since indicated that in their view the promotion of good race relations has ceased to be political: Charity Commission Report, (1983) 10-11.
 Re Koeppler's Will Trusts  Ch 243.
  Ch 423.
 Ibid 437.
 (2000) The Times 18 July.
 In both cases, the target audiences consisted of pressure groups, the media and decision-makers.
J Garton, 'Southwood v Attorney General' (2000) 14 Trust Law International 233, 236.
 Royal North Shore Hospital of Sydney v Attorney-General  HCA 39; (1938) 60 CLR 396, 426 (Dixon J); McGovern v Attorney-General  1 Ch 321, 343 (Slade J); Molloy v Commissioner of Inland Revenue  1 NZLR 688, 695 (Somers J); Re Scarborough Community Legal Services v R (1985) 17 DLR (4th) 308, 325-6 (Marceau J).
 Dal Pont, above n 17, 207.
 Public Trustee v Attorney-General (1997) 42 NSWLR 600, 621 (Santow J).
  1NZLR 688.
 The case of Re Inman  VicRp 36;  VR 238 is a clear illustration of a case falling on the other side of the line. The main purpose of the trust was the prevention of cruelty to animals, but also included in its objects was the procurement of 'such further legislation as may be thought expedient'. This was characterised by the court as simply a method of achieving the main object and the trust was admitted to charitable status.
 McGovern v Attorney-General  1 Ch 321, 340 (Slade J).
 A Sprince, 'Political Activity by Charitable Organisations: an English model with more to learn than teach?' (1997) 11 Trust Law International 35, 38.
 C Forder, 'Too Political to be Charitable?' (1984) 48 The Conveyancer and Property Lawyer 263, 270.
 (1927) 136 LT 27.
  1 Ch 240.
 Dal Pont, above n 17, 209. Arguably, the court confused the donor's motive with the principal object. A New Zealand case illustrating this point is Knowles v Commissioner of Stamp Duties  NZLR 522. In this case it was held that by its very name, the New Zealand Alliance was instituted mainly with the direct purpose to effect changes in the law, despite stipulating that its objects were also to be achieved through legislation in addition to education, the circulation of literature and public meetings.
 Sprince, above n 60, 38.
 Dal Pont, above n 17, 207.
 Ibid 207.
 Bowman v Secular Society Ltd  AC 406, 442.
 McGovern v Attorney-General  1 Ch 321, 339.
 Molloy v Commissioner of Inland Revenue  1 NZLR 688.
 ReHopkinson  1 All ER 346.
 Dal Pont, above n 17, 209.
  1 Ch 249.
 Ibid 255.
 Dal Pont, see n 17, 2.
  UKHL 4;  AC 31.
 M Chesterman, ‘The Judge As Lawmaker' (1972) 12 Journal of the Society of Teachers of Public Law 22.
 Chesterman, above n 21, 348.
  Ch 73.
 Forder, above n 61,266.
 Sprince, above n 60, 37.
 Perri and Randon, Liberty, Charity and Politics: Non-Profit Law and Freedom of Speech (c1995) 101.
 Ibid 104.
 Dal Pont, above n 17, 214.
 National Anti-Vivisection Society v Inland Revenue Commissioners  UKHL 4;  AC 31 (Wright L).
 Picarda, above n 7, 181.
  1NZLR81.
 Ibid 89-90.
 Dal Pont, above n 17, 214.
 C Rickett, 'Charity and Politics' (1982) 10 New Zealand Universities Law Review 169, 172.
 Forder, above n 61, 266.
 Dal Pont, above n 17, 215.
 For example, Denmark and Finland among a range of others.
  22 OR 573.
 Clark, above n 5, 460.
 Charity Commission of England and Wales, Political Activities and Campaigning by Charities, above n 8, 8.
 In Australia, this is up to a maximum of $1500 per annum under the Income Tax Assessment Act 1997 (Cth) Subdiv. 30-DA, and similarly in the United Kingdom under the Finance Act 1975.
 Burt, above n 15, 27.
 Sprince, above n 60, 40.
 Charity Commission of England and Wales, Charities: a Framework for theFuture (1989) 11- 12; Wales, Political Activities and Campaigning by Charities, above n 8, 8.
 P Todd, Textbook on Trusts (3rd ed, 1996) 268.
 Although not Dunn's view, she refers to it in her work - A Dunn, 'Charity Law as a Political Option for the Poor' in C Mitchell and S Moody, The Foundations of Charity (2000) 70. This concern is given further significance by the way guidelines issued by the English Charity Commission emphasise the importance of presenting well-founded and reasoned material.
 Human Life International In Canada Inc v Minister of National Revenue  3 FC 202.
 Positive Action Against Pornography v Minister of Inland Revenue  1 CTC 232.
 Burt, above n 15, 28. Burt even suggested the fact that 'presumably exponents of this view would welcome the Taleban, but not the charitable sector' because of the different viewpoints charities espouse.
 Ibid 27.
 Dunn, above n 103, 70.
 Burt, above n 15, 28.
 Charity Commission of England and Wales, Oxfam: Report of Inquiry (1991) 17.
 Clark, above n 5, 466.
  1 Ch321.
  NZGazLawRp 96;  NZLR 1065.
 Ibid 338.
 R Nobles, 'Politics, Public Benefit and Charity' (1982) 45 Modern Law Review 704, 705.
 F Weiss, 'Quot Homines Tot Sententiae or Universal Human Rights: A Propos -McGovern v Attorney General' (1983) 46 Modern Law Review 385, 407.
 One of the objects in the preamble to the Statute of Uses is 'the relief or redemption of prisoners or captives'. As a result, the decision seems an odd retraction from the broad analogy approach commonly adopted.
 Weiss, above n 117, 385, 407.
 Ibid 404.
 Ibid 408.
 Ibid 407.
 Re Harwood  Ch 285. This case was not followed in Re Koeppler. However, the case is generally cited in textbooks for its relevance to the doctrine of cy-pres.
 Seen 84, 211.
  2 QdR 567, 580-1.
  1NZLR81, 91.
 This position was like this because attached to the objective was the aim that soldiers be empowered to stop fighting and lay down arms, which soldiers could not do legally under military law.
 Dal Pont, above n 17, 214.
 Ibid 213.
 Ibid 214.
 (1997) 42 NSWLR 600.
 Ibid 619.
 Dal Pont, above n 17, 214. This was foreshadowed by the dissenting judgment of Lord Porter in the National Anti-Vivisection case  UKHL 4;  AC 31,55, who said 'I cannot accept the view that the anti-slavery campaign.. would be charitable so long as the supporters of these objects had not in mind or at any rate did not advocate a change in the laws, but became political and therefore non-charitable if they did so'.
  ICR 490.
 Ibid 502.
 Forder, above n 61, 268.
 Sprince, above n 60, 37.
 Nobles, above n 115, 707. The contentious nature of the issues involved was partly the justification for decisions such as Molloy and McGovern.
 Dunn, above n 103, 73.
 Burt, above n 15,24.
 Dunn, above n 103, 62.
 Ibid 66.
 Ibid 59.
 Burt, above n 15,27.
 (1997)42 NSWLR 600.
 Ibid 607-8. He suggested the proposition derived support from judgment of Dixon J in Royal North Shore Hospital of Sydney v Attorney-General  HCA 39; (1938) 60 CLR 396, 426, although Dal Pont sees it as difficult to find a statement to this effect in Dixon's judgment. See also Santow, above n 6, 225, 258.
 Sprince, above n 60, 37.
 Dunn, above n 103, 75.
 J Hackney, 'The Politics of Chancery' (1981) 34 Current Legal Problems 113, 127.
 Nobels, above n 115, 171.
 Dunn, above n 103, 74.
 Ibid 66.
 Burt, above n 15, 25.
 Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue (1999) 99 DTC 5034. It was indicated that an organisation could retain charitable status if its conduct of political activities was in the pursuit of charitable purposes.
 Charity Commission of England and Wales, Political Activities and Campaigning by Charities, above n 8, 8.
 Dal Pont, above n 17, 216.
 Santow, above n 6, 262.
 Lewis, above n 1, 11. This suggestion is derived from a recent proposal by the Canadian Centre for Philanthropy.
 Ibid 12.
 Ibid 9.
  EWCA Civ 1172;  3 WLR 862.
 Ibid 909.
  HCA 25; (1997) 189 CLR 520.
 Santow, above n 6, 263.
  1NZLR81.
 Ibid 80-9.
 Rickett, above n 14, 55.