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Charity Advocacy: Recent Developments


Presented by Kate Davenport QC, Jennifer Batrouney AM QC, Professor Matthew Harding and Sue Barker 




The New Zealand Court of Appeal recently handed down its judgment in the case of Family First New Zealand v Attorney-General. This case raises important questions relating to the legal treatment of political advocacy and the law of public benefit in New Zealand. CLAANZ recently intervened in the New Zealand Court of Appeal case, Family First of New Zealand v Attorney-General. The case was heard in October last year, and a CLAANZ team of consisting of Kate Davenport QC, Jennifer Batrouney AM QC, Professor Matthew Harding, and Sue Barker, prepared the CLAANZ submissions and then presented oral arguments in Court. 

On Thursday 1 October, the CLAANZ team that ran the intervention, discussed the implications of the decision and lessons for both New Zealand and Australia. Kate Davenport chaired a panel discussion in which Jennifer Batrouney, Matthew Harding and Sue Barker focused on the procedural history of the case, the current state of the law in New Zealand and Australia, and the questions on public benefit and political advocacy that remain unanswered in New Zealand law.

The New Zealand Court of Appeal handed down its judgment in this important case. The judgment may be found here

Why did CLAANZ intervene in this case?

CLAANZ sought and was granted leave to appear as an intervenor. CLAANZ did not wish to contend that either party should be successful in the appeal. However, CLAANZ submitted that the interests of justice would be promoted by allowing the intervention because CLAANZ was able to offer a wider perspective than that which concerned the parties to the case. CLAANZ felt that, drawing on its deep charity law expertise, it could assist the Court in considering the appeal by making brief impartial submissions concerning the manner in which the law had developed in relation to advocacy by charities in common law jurisdictions such as New Zealand, Australia and Canada. Specifically, CLAANZ wanted to ensure that the court understood the reasoning and implications of the recent decision of the Ontario Superior Court of Justice in Canada Without Poverty v Attorney-General of Canada 2018 ONSC 4147, in which restrictions on deploying charity income for political advocacy purposes were ruled unconstitutional, and to draw the Court’s attention to jurisprudence from around the common law world (including New Zealand) in which the indirect public benefits of a purpose have been recognised in charity law. CLAANZ’s submissions on this last point were endorsed by the Court.


Watch the videos below. 




Introduction


Speaker: Kate Davenport QC

 

 
     

Procedural history of the case


Speaker: Jennifer Batrouney AM QC

     

The current state of the law in New Zealand and Australia


Speaker: Professor Matthew Harding 

      

Questions on public benefit and political advocacy that remain unanswered in New Zealand law


Speaker: Sue Barker
     
 

Q&A


Speakers: Kate Davenport QC, Jennifer Batrouney AM QC, Professor Matthew Harding, Sue Barker
 



About the speakers


Kate Davenport QC

Kate Davenport QC is an exceptional advocate with more than 30 years’ litigation experience. Kate is admitted in New Zealand and the Middle Temple. She brings an intelligent, commercial and practical approach to resolution of clients’ problems. She has a wide range of commercial and civil litigation experience with a focus on trusts and equity, public law, professional regulation, contract, torts, construction, land law and medico legal issues.


Jennifer Batrouney AM QC

Jennifer practises in taxation, equity, superannuation, commercial and administrative law. With 27 years’ experience at the Bar, she is a trusted advisor to a range of corporate, government and not-for-profit clients. In addition to general income tax and R&D matters, she has experience in advising in relation to GST, FBT, payroll and land taxes. She also has a substantial equity practice in the not-for-profit sector and has assisted numerous not-for-profit entities to obtain or retain their tax concession charity status. Jennifer has acted as an expert determiner and is a consultant to the ATO Public Advice and Guidance Panel. Jennifer appears before the High Court, the Federal Court and the superior State courts, mainly in revenue matters.

Jennifer has been a silk for over 17 years and is a past President of the Victorian Bar and of the Tax Bar Association. She is presently President of the Australian Bar Association and Chair of the Law Council Charities and Not-for-Profits committee. She is also a member of the Melbourne Law School Advisory Council and Melbourne Tax Masters Advisory Committee. Jennifer is also a Senior Fellow at the Melbourne Law School, teaching in the Tax Masters Program.


Professor Matthew Harding

Matthew Harding is Professor of Law at the Melbourne Law School, the University of Melbourne. Matthew’s research interests lie in moral and political philosophy, the theory and doctrines of equity, property law, judicial practice and precedent, and the law of charities and other not-for-profits. He has taught and published widely in these fields. He is the author of Charity Law and the Liberal State (Cambridge University Press, 2014) and has edited or co-edited several collections, including Fiduciaries and Trust: Ethics, Politics, Economics and Law(Cambridge University Press 2019, with Professor Paul Miller), The Research Handbook on Not-for-Profit Law (Edward Elgar, 2018), Not-for-Profit Law: Theoretical and Comparative Perspectives (Cambridge University Press, 2014, with Professors Ann O’Connell and Miranda Stewart), and Exploring Private Law (Cambridge University Press, 2010, with Professor Elise Bant). Matthew is an editor of the Journal of Equity, a member of the Advisory Board of Oxford Studies in Private Law, a member of the Charities Committee of the Law Council of Australia, and the Chair of the Charity Law Association of Australia and New Zealand. He has been a visiting scholar at the University of Toronto, Queen's University Belfast, the University of Otago, the University of the Western Cape, and Florida State University, and in January 2020 will be Kwa Geok Choo Distinguished Visitor at the National University of Singapore.


Sue Barker

Sue Barker is the director of Sue Barker Charities Law, a boutique law firm based in Wellington, 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 the 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 Regulating Charities: the Inside Story (Routledge, 2017) and Corporate Governance – a Practical Handbook (2ed) (Wolters Kluwer, 2016). 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. Sue is currently on sabbatical as the 2019 New Zealand Law Foundation International Research Fellowship, undertaking research into the question “What does a world-leading framework of charities law look like?”, with a report due by 2021.