What does a world-leading framework of charities law look like?

By Sue Barker
New Zealand Law Foundation International Research Fellow Te Karahipi Rangahau ā Taiao

Civil society is operating in an increasingly hostile environment. The number of democracies backsliding into authoritarianism has doubled in the past decade, as repressive regimes crack down and democratic governments adopt restrictive measures in response to the pandemic.

According to the CIVICUS monitor, 87% of the world’s population are now living in countries rated as closed, repressed or obstructed. American social psychologist Professor Jonathan Haidt argues this century is becoming a contest between open societies (West) and a closed society (China).

In 2001, the 9/11 terror attacks in the US led to an explosion of counterterrorism measures that prioritised security at the expense of norms related to civic and personal freedoms. The overall impact on democracy has been profoundly negative.

It is not widely known that the Charities Act 2005 in New Zealand has been part of this process.

Following 9/11, the Financial Action Task Force issued a series of 8 Special Recommendations dealing with terrorist financing. Recommendation 8 urged countries to review the adequacy of their laws relating to non-profit organisations, describing them as “particularly vulnerable” to abuse in this regard. Subsequently, there was a wave of charities legislation around the world, including in: Australia, China, England and Wales, Ireland, the Isle of Man, Jamaica, Jersey, New Zealand, Northern Ireland, Pakistan, Scotland, Singapore, Uganda, and Zambia.

In New Zealand’s case, pressure from the UN Security Council following 9/11 led to the original Charities Bill being introduced into Parliament on 23 March 2004.

Since then, administration of charities legislation has become increasingly restrictive: a seemingly-inexorable march towards increasing regulation and control, particularly in relation to charities’ ability to advocate for their charitable purposes and those they represent.

However, US-led efforts post-9/11 have been largely concerned with the use of coercive action to address violent symptoms of terrorism, rather than focusing on its causes.

The better way to protect against increasing extremism is to bolster the bonds of community and democracy: as the Royal Commission of Inquiry into the 2019 Mosque attacks noted, social cohesion is critical to preventing the development of harmful radicalising ideologies, to strengthening resilience to the narratives of hate and division, and thus to preventing downstream violent extremism.

It is often said that, much like a virus, disinformation spreads through susceptible hosts: democratic principles such as social tolerance, trust and the rule of law act as a vaccine to the hateful and racist ideologies that are dedicated to destabilising democratic principles and destroying such norms.

The Charities Act is currently being reviewed, providing New Zealand with an opportunity to create a world-leading framework of charities law: one that resists the trend towards increasing authoritarianism and ever-decreasing levels of trust, and seeks to uphold liberal democratic values of social tolerance and the rule of law.

The best way to create social cohesion is to allow charities to do their work without undue government interference. Sadly, the current review risks heading in the opposite direction.

About the Author: 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. Sue is currently on sabbatical as the New Zealand Law Foundation International Research Fellow Te Karahipi Rangahau ā Taiao, undertaking research into the question “What does a world-leading framework of charities law look like?”, with a report due imminently. More information about Sue and the research can be found at www.charitieslaw.co and www.charitieslawreform.nz.

Blog Post written by:
No items found.