Moving the Charitable Goal Posts?

Did the Charities Act change the law? In the first High Court decision appealing a determination by the Charities Commission that an entity was not charitable under the Charities Act 2005, the judgment observed that “s 5(1) of the Act codifies the common law and it is in the common law that the answer in this case is to be found” (Travis Trust v Charities Commission, High Court, Wellington Registry, CIV-2008-485-1689, 3 December 2008, para [22]).  That decision therefore suggests that the Charities Act did not change the law on what is or is not a charitable society or trust. The judgment in Re the Grand Lodge of Antient Free and Accepted Masons of New Zealand, High Court, Wellington Registry, CIV-2009-485-2633, 22 September 2010, another appeal from a Charities Commission ruling, noted that: “[7] Until recently, a body’s status as a charity was determined by the Commissioner of Inland Revenue.  It was his responsibility because status as a charity had significant taxation benefits. “[8] The Charities Act 2005, which came into force in July 2008, changed that.  It established a Charities Commission and a charities register.  The advantages available under the taxation legislation were thereafter to be accorded only to bodies that were registered by the Charities Commission as charities.  However, the new Act did not change the tests for determining a charity. It only changed the decision maker.” Ultimately, of course, it was the Courts that determined whether the Commissioner of Inland Revenue was right or wrong in his determinations, just as is the case under the Charities Act where appeals are heard by the High Court. Charitable...