Clarifyng the Charitable Status of Amateur Sport in the Charities Act 2005

Abstract

The present paper deals with the question of whether and to what extent the charitable status of amateur sport should be clarified in New Zealand charity legislation, especially focussing on a possible amendment of the Charities Act 2005. At present, the definition of what is charitable is still based on the original, more than 400 year-old definition of charity laid down in the Statute of Elizabeth 1601. The current legal framework for charities in New Zealand, like many other common law jurisdictions, reflects the long-established principles and applies the traditional common law definition of charitable purposes. However, social perceptions of what is considered charitable change with the passing of time. This also applies to the case of amateur sport as its significant public benefit is beyond doubt and extends beyond the advancement of a recognised charitable purpose. Yet, because the current legal framework is out of touch with social and legislative developments, uncertainty consequently arises. The present confusion among sporting bodies following a High Court decision in the Travis Trust case as to the question whether amateur sport purposes can still receive charity funding illustrates this fact. In light of this, the present paper examines how to clarify the present charity law for the benefit of amateur sport. The author considers alternatives for legislating New Zealand charity law and seeks recourse to precedents in other jurisdictions, in particular to the Charities Act 2006 of England and Wales. The findings are implemented in a legislative proposal. The author concludes that the promotion of amateur sport should be recognised in the Charities Act 2005 as a charitable purpose in its own right rather than as a means of advancing another charitable purpose and recommends that this issue be considered in the course of the current review of the Act by the Department of Internal Affairs.