Editors’ Note: Jane Calderwood Norton and Matthew Harding offer an assessment of the “political purpose doctrine,” which excludes organizations whose main purpose is political from charitable status, and examine how jurisdictions across the common law world have responded to it, based on their recent article in Legal Studies, “Charities and Politics: Where Did We Go Wrong?”

Whether charities should be “political” – and how – is a long-standing question for those involved in the charity sector. One answer has been provided by the “political purpose doctrine,” which arose most clearly from English case law in the 20^th century. It says that if an organization’s main purpose is political then the organization cannot be charitable.

Many legal scholars and practitioners are confounded by the doctrine and believe it should be abandoned. In a recent article in Legal Studies, “Charities and Politics: where did we go wrong?”, we offer our own assessment of the doctrine, while examining how jurisdictions across the common law world have responded to it. We argue that no jurisdiction has confronted the public benefit (and detriment) of political advocacy adequately, and we propose greater recognition of the indirect or process benefits of advocacy, provided it is consistent with altruism and liberal democratic values.

The origin of the political purpose doctrine is not entirely clear, but it appears to have arisen from the English decision in Bowman v Secular Society (1917). In that case, Lord Parker stated that a trust for the attainment of political objects had “always been held invalid.” Although the correctness of that statement has since been questioned, it was confirmed in National Anti-Vivisection Society v Inland Revenue Commissioners (1948) and significantly expanded in McGovern v Attorney-General (1982). In McGovern, two purposes of a trust established by Amnesty International—securing the release of prisoners of conscience and procuring the abolition of torture and inhuman or degrading treatment or punishment—were held not to be charitable because of their political nature.

Applying the political purpose doctrine has proved challenging from the outset. To start with, how do we identify a “political purpose”? Promoting a particular political ideology, party or candidate is obviously political but – as a result of the McGovern decision – the political purpose doctrine also prohibits organizations that advocate for changes in law, policy or administrative decision-making from being charitable. This means that any effort aimed at social (and not just legal) reform potentially falls afoul of the doctrine.

Charities for the advancement of education also often come up against the political purpose doctrine. Here the line between political propaganda which is non-charitable and education that addresses political matters but is nonetheless charitable, can be particularly hard to draw. Educating about a cause is seen to be charitable, for example, whereas advocating for that same cause may not be. Perhaps because the doctrine is seen as unduly constraining, some courts appear to have interpreted the purposes of an organization in such a way as to circumvent the prohibition on political purposes. For example, in Re Koeppler’s Will Trusts (1986), a trust for the purpose of facilitating high-level discussions among European governments was upheld as being for the advancement of education, even though the content of the discussions was unquestionably political. The doctrine also means that while we might see certain purposes as undoubtedly good – securing the release of prisoners of conscience, procuring the abolition of torture, preventing cruelty against animals – an organization whose main purpose is advocating for these causes cannot be charitable. To be clear, however, not all political activity by charities is prohibited. Organizations can still campaign for changes in laws and policies if that is consistent with advancing their charitable purpose (relief of poverty, for example); it just cannot be its main purpose.

So why does this doctrine exist? Two main justifications for the doctrine emerge from the English case law. First, some courts have said that they are not qualified to answer whether a political cause is for the public benefit—such questions go beyond the expertise of, or evidentiary material available to, the court. The problem of assessing the public benefit of changes to law or policy is compounded, the courts have said, where changes are sought in other countries given their different historical and social contexts. Secondly, it has been argued that determining whether a political purpose is publicly beneficial can take a court beyond its constitutional role. A court’s role in a system based on Parliamentary sovereignty is, the argument goes, to apply the law on the basis that it is right as it stands and not to determine whether it ought to change. These concerns are amplified when it comes to questions of policy (rather than law), and where the purpose seeks change in other countries that could risk prejudicing foreign relations. A clear advantage of the strict political purpose doctrine is that it enables a court to avoid making determinations on (often highly contested) political questions.

The changing nature of charity, and an increasing expectation that charities will contribute to legal and policy developments in their area, has inevitably meant that the political purpose doctrine has needed to be revisited. Jurisdictions across the common law world have varied in both the manner and degree to which they are prepared to depart from it. Our article explains how England and Wales adheres most closely to the doctrine (or at least have not openly disavowed it) with some adjustments around the edges. New Zealand has purported to abandon it but retains it largely in substance. And Canada and Australia have come to positions in between adherence and abandonment.

In our view, of all the recent approaches to political purposes across the common law world, the approach of the Australian High Court in the case of Aid/Watch Inc v Federal Commissioner of Taxation (2010) has the most potential. Aid/Watch is an activist organisation that agitates for changes to the Australian government’s foreign aid program. Its charitable status was questioned by the Commissioner, and ultimately ruled on by the High Court of Australia. A majority of the Court accepted that indirect benefits may flow from advocacy itself albeit that these benefits must still be linked to an extant charitable purpose. Although heavily influenced by the freedom of political communication implied in the Australian constitution, the Court saw debate – in this case about the efficiency of foreign aid – as generating a public benefit because of the contribution it makes to the political culture on which representative and responsible system of government depends.

We agree that political advocacy can provide indirect ‘process’ benefits—irrespective of any political objectives sought—by contributing to the thriving, diverse political culture necessary to sustain democracy. In addition to offering diverse perspectives, charities often have expertise that can inform legislative and policy reforms. They can also provide information to the public on any proposed reform and this may inform and encourage wider participation in any government consultation process, as well as assisting citizens to hold government to account. Charities engaged in political advocacy can also put forward perspectives of those who are otherwise under-represented or marginalized (such as children, refugees, and people living in poverty). Charities can also advocate on behalf of the natural environment and non-human animals.

Despite the indirect or process benefits of political advocacy, we argued in our article that recognising political advocacy purposes as charitable should still be subject to two main constraints. The first constraint is that these purposes should be underpinned by the idea of altruism, which is the central organising idea of charity law. One of the difficulties with organizations that engage in political advocacy is that they may be aimed at securing a private advantage or interest rather than being orientated towards helping others or those who do not share the same interests (or who may have conflicting interests). While this distinction may be challenging to determine in some cases, a commitment to altruism would help to ensure that political purposes are indeed for the public benefit and that public trust and confidence in the charitable sector is maintained.

The second constraint we identify is that assessing the public benefit of political advocacy should entail considering any detriments that may arise from that advocacy, including where it may be inconsistent with liberal democratic values. These values form the basis of our system of government; the charity law that we are concerned with arises in the context of political orders that are committed to liberal democracy. We argued that while political advocacy can generate benefit (including realizing liberal democratic values such as freedom of expression), it may also lack public benefit because either the ends sought or the manner in which they are pursued is inconsistent with liberal democratic values. In this way, liberal democratic values can help identify those purposes that are beneficial to the public and at the same time inform judgments about those that are not.

Looking first at ends sought, some political advocacy could be seen as entailing detriment because the end advocated for is inconsistent with liberal democratic values (at least, in a political order that is committed to these values). This would include political advocacy that stands to erode or undermine liberal democracy or the institutions and values that sustain it—such as equality, non-discrimination, free political expression, public participation and so on. The recent case of Attorney General v Family First New Zealand (2022) could be seen as an example of this. In that case, a conservative “family values” organization was seen by the Court as not just promoting a particular or singular version of the family – the traditional family – but seeking to disadvantage others through law reform that would remove (rather than secure) recognition and support from non-traditional families. For example, it campaigned against gay marriage and support for single-parent families, and for making divorce more difficult by introducing fault-based divorce with the weight of the law on the side of the spouse resisting dissolution. In other words, Family First was seen as promoting discriminatory, anti-liberal ends.

The manner in which advocacy is undertaken may also be relevant to whether the organization provides a public benefit. Process benefits – including contribution to a vibrant political culture – will be lacking if the advocacy does not reflect underlying liberal democratic values. For example, in his concurring judgment in the Family First case, Justice Williams said that “[h]onesty and respect in debate is not self-referential. In fact it can contribute to social cohesion and the empowerment of individuals while respecting also the communicator’s right to their point of view. It can assist the community to navigate its way through difficult issues. And there is certainly no shortage of those right now.” In his mind, Family First’s advocacy was too one-sided to provide this sort of benefit and arguably even stood to produce a social dis-benefit. The advocacy at issue in the Family First case can be contrasted with that in another New Zealand case, Better Public Media Trust v Attorney-General, where charitable status was granted to an organization that promoted the role of public media in a “respectful” and “balanced and measured manner.”

We conclude that the way forward in this area likely lies in further elaboration and reflection on the Australian approach. If political advocacy purposes are recognized, clear and cogent limits will need to be articulated to avoid an explosion of new purposes on the back of arguments about wider indirect benefits. Our article has suggested a place to start when determining these parameters by appealing to the principle of altruism and the values underpinning liberal democracy.

-Jane Calderwood Norton and Matthew Harding

Jane Calderwood Norton is a Senior Lecturer at the University of Auckland, Faculty of Law and editor of the New Zealand Law Review. Jane’s research lies in the areas of charitable trusts, human rights (particularly freedom of religion and freedom of expression), discrimination law, and legal theory. Matthew Harding is a barrister at the Victorian Bar and a Professor in the Melbourne Law School at the University of Melbourne. He has particular expertise in equity and trusts and in the law and regulation of charities and other not-for-profit organisations. He was Dean of the Melbourne Law School from 2022 to 2024 and is a member of the Law Council of Australia Charities Committee, and a fellow of the Australian Academy of Law.