With the PM’s Cabinet ministers reconsidering policy priorities, Sue Barker, Director of Sue Barker Charities Law, joins us for a series on 10 election policies for charities for 2023. In the first part of the series, Sue shares her insight on the problematic Charities Amendment Bill. She will also be presenting in March at the upcoming Charities and Not for Profits Update.
Democracy has always had to fight against totalitarianism. This year is no exception, as witnessed, for example, by the situations in Ukraine, Myanmar, and by the many millions of migrants and refugees fleeing repressive regimes. For much of the 21st century, China, Russia and other dictatorships have laboured persistently to shift the global post-World War II consensus that democracy is the only viable path to prosperity and security, to the point that the global order is now nearing a tipping point in the battle between democracy and the forces of autocracy.
As a small, unicameral, non-federal nation, with a “do-it-yourself” mindset forged by geographical isolation, often described as the “social laboratory of the world”, New Zealand is well-placed to be a vanguard in the reclamation of democracy. Democratic nations share interests in fair trade and security, and since they are more likely to adhere to agreements and norms, they make more reliable partners in both fields. Their institutional and popular support for accountability and the rule of law also make them more predictable and rewarding environments for public and private investment. Developing a set of coordinated international policies grounded in democratic principles will ultimately make all participating countries safer, more prosperous and more just. However, democracy cannot be taken for granted.
After a challenging year that has seen Labour lagging in the polls, the Prime Minister has asked her Cabinet ministers to reconsider policy priorities over the summer break, signalling that contentious policies may be cut for the coming election year. There are plenty of contentious policies to choose from, but one which should be front of mind, particularly in the current geopolitical context, is the problematic Charities Amendment Bill 169-1.
Policy 1: press pause on the Charities Act changes
An independent civil society is as critical to democracy as free and fair elections, an independent judiciary, and a free press. Why, then, is New Zealand allowing its Charities Act 2005 (“the Act”) to be used as a tool for suppression of not-for-profit advocacy? And why is the government trying to push through a Charities Amendment Bill that will only entrench, within an unelected bureaucracy, even more unbridled power to arbitrarily determine the nature and scope of our civil society? New Zealand must be wary of “sleep-walking” its way to increasing authoritarianism.
The Department of Internal Affairs (“DIA”) argues there is no cause for concern, offering a number of rationalisations to justify its position, such as “we are just applying the law”, Charities Services’ decisions are “independently reviewed”, “the Charities Registration Board is independent of Charities Services”, “the fundamentals of the Act are sound”, or the Bill will make “practical changes to support charities to continue their vital contribution to community well-being”. However, these rationalisations should not be accepted at face value and require critical examination: scratch beneath the surface and it quickly becomes apparent that the “Emperor has no clothes”.
We call upon the Labour government to press pause on the Charities Amendment Bill, go back to the drawing board, and honour its manifesto commitment for the 2017 election to prioritise the long-promised first principles review of the Charities Act”, including:
(i) consulting with the sector (rather than just with DIA or charities funded by DIA) on whether disestablishing the independent Charities Commission and transferring its functions to a business unit of DIA has saved any cost, or otherwise improved anything for anyone;
(ii) examining, updating and widening (rather than narrowing) the definition of charitable purpose (and ideally putting guardrails into the legislation to reduce the scope for subjectivity and arbitrariness as to how the definition is interpreted); and
(iii) ensuring that charities can engage in advocacy without fear of losing their registered charitable status.
We also ask that Ministerial appointments to the community and voluntary sector portfolio reflect the fundamental importance of the sector to our country’s social cohesion, wellbeing, and democracy: we need a Minister who can protect the charitable sector from over-reaching predations of officials, and who will not allow themselves to be captured by DIA. There also needs to be an investment in fostering public understanding, particularly among young people and the public service, of what democracy actually is and why, in the interests of our collective prosperity and security, we all need to be eternally vigilant in protecting it.
Sue Barker is the director of Sue Barker Charities Law, a boutique law firm based in Wellington, New Zealand, specialising in charities law and public tax law. Since its founding in 2012, the firm has won a number of awards, including Boutique Law Firm of the Year at the New Zealand Law Awards. Sue is a member of Charities Services’ Sector Group and a member of the Core Reference Group for the review of the Charities Act. Sue is also a co-author of the text The Law and Practice of Charities in New Zealand (LexisNexis, 2013) and a contributor to a number of texts, including Charity Law: Exploring the Concept of Public Benefit (Routledge, 2022) and Regulating Charities: the Inside Story (Routledge, 2017). In 2016, Sue was made an Honorary National Life Member of the National Council of Women of New Zealand Incorporated for her work assisting the Council with charities law issues. In 2019, Sue was awarded the New Zealand Law Foundation International Research Fellowship Te Karahipi Rangahau ā Taiao, New Zealand’s premier legal research award, to undertake research into the question “What does a world-leading framework of charities law look like?”. Her report Focus on purpose was released in April 2022 making 70 recommendations for charities law reform in Aotearoa New Zealand”. More information about Sue and the research can be found at www.charitieslaw.co and www.charitieslawreform.nz
Contact Sue at [email protected] or connect via LinkedIn
 Charles Edel The writer who warned against rising authoritarianism – and his advice for resisting it The Washington Post 25 May 2018: <www.washingtonpost.com/news/made-by-history/wp/2018/05/25/the-writer-who-warned-against-rising-authoritarianism-and-his-advice-on-resisting-it/>.
 Freedom House Freedom in the World 2022 – the Global Expansion of Authoritarian Rule February 2022: <freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule> at 13.
 Freedom House Freedom in the World 2022 – the Global Expansion of Authoritarian Rule February 2022: <freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule> at 1.
 Te Ara the Encyclopaedia of New Zealand ‘Social laboratory of the world’, 1890 – 1920: <teara.govt.nz/en/visitors-opinions-about-new-zealand/page-3>.
 Freedom House Freedom in the World 2022 – the Global Expansion of Authoritarian Rule February 2022: <freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule> at 15.
 Thomas Manch Ardern asks Cabinet ministers to consider priorities over summer Stuff 12 December 2022.
 See, for example, Attorney-General v Family First New Zealand  NZSC 80 (28 June 2022).
 See the discussion in S Barker Focus on purpose – what does a world-leading framework of charities law look like?  NZLFRR, in particular chapters 3-7.
 A petition to press pause on the Charities Act changes gained over 250 signatures in just over a week available before submissions on the Bill closed. See <our.actionstation.org.nz/petitions/press-pause-on-the-charities-act-changes>.
 New Zealand Labour Party Community and Voluntary Sector Manifesto 2017 at 5.