October 2006
In response to recent media coverage about charitable organisations that engage in political lobbying and their eligibility for registration with the Charities Commission, we have provided the following information.
Advocacy and the Charities Act
The Charities Commission will apply section 5 of the Charities Act 2005 to assess charitable and non-charitable activities. Every applicant is judged on its rules and activities on a case by case basis.
Section 5(1) of the Act states that a charitable purpose includes "every charitable purpose, whether it relates to the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community."
In addition to being one of the four charitable purposes, the purpose must be directed towards the public benefit. This means that it must be for a benefit that is capable of being clearly identified and defined and must be available to a sufficient section of the public.
The charitable purpose test will be applied using the same criteria as the courts have applied for the last 400 years. The courts have not been willing to find that lobbying for a law change or a change or change of government or other political purposes is charitable because they have considered that it is not possible to judge whether a proposed political change or law change will or will not benefit the public.
The courts felt that they should not decide whether a political party or a particular proposed law change was of ‘public benefit’ (an essential part of all charitable purposes). Courts felt that this decision was best left to voters and to parliament.
Therefore groups that exist with a primary purpose of bringing about change in the law have not been found to be charitable. The Commission will use the same approach in considering applications for registration.
It is important to note, however, that section 5(3) also states that the presence of a "non-charitable purpose (for example, advocacy) that is merely ancillary (ie secondary, subordinate or incidental) to a charitable purpose" will not prevent an entity from qualifying for registration as a charitable entity.
Related links:
Press release from Hon Luamanuvao Winnie Laban's office - Charities Commission processes robust