More questions on the Sensible Sentencing Trust

Written By: - Date published: 5:48 am, March 16th, 2009 - 52 comments
Categories: law and "order" - Tags:

Last week, Tane pointed out that the private prison industry had been involved in corrupting the political process in the US by funding ‘tough on crime’ groups that call for longer sentences (and bigger profits for private prisons). He wondered if the same could be happening here with the Sensible Sentencing Trust. This provoked a press release from Sensible Sentencing which frothed and threatened but did not deny that they receive money from GEO or other private prison companies looking to set up shop in New Zealand. You can’t help but think a nerve was hit.

In that press release, Garth McVicar exclaimed SST is a “registered charitable trust” and its website calls it a “charitable trust” but no-one can find them on the charities commission register. Here, mickysavage picks up the case:

I checked the incorporated societies website and came up with an application for registration of the trust under the Charitable Trusts Act 1957 and a trust deed. A certificate of incorporation exists and can be downloaded from the Societies website. There is nothing unusual here. The Charitable Trusts Act 1957 was the predecessor to the Charities Act 2005 and entities registered under the old Act do not have to be registered under the new Act.

However, section 37(1) of the Charities Act states clearly that ‘[a] person must not use a style or title including the words ‘registered charitable entity’. A ‘charitable entity’ is defined as including ‘ the trustees of a trust that is or are registered as a charitable entity under this Act’. It appears that this only includes entities under the new Act.

If an entity under the old Act did not wish to register under the new Act it did not have to. But it is clear that the aim of the new legislation was to achieve transparency around the receipt of donations and my reading of the section is that if a 1957 Act entity did not reregister then it could no longer advertise itself as being ‘charitable’. It could still exist, but not hold itself out to the public as being a charity.

If this is correct then the SST may have committed an offence. Section 38 states that ‘[e]very person who acts in contravention of section 37(1) commits an offence and is liable on summary conviction to a fine not exceeding $30,000’.

The SST has a significant say in the local law and order debate. Presumably if someone wanted the SST to comply with the Charities Disclosure law all they needed to do was to write to the Charities Commission and provide them with proof. If this happened then an investigation would be warranted.

Could this be strike one? If so should we lock the SST up and throw away the key?

[lprent: Fixed up the link to the press release, and put in the quote from it. Eddie – please link to relevant pages.]

52 comments on “More questions on the Sensible Sentencing Trust ”

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  1. Tigger 1
    16 March 2009 at 7:34 am

    Kind of ironic that an organisation that claims to be about law and order can’t seem to operate with either.

    • QoT 1.1
      16 March 2009 at 10:29 am

      Well, obviously, Tigger, it’s not like fraud is a *real* crime. Just like speeding while white and middle-class, or killing people who are taggers.

  2. Graeme 2
    16 March 2009 at 8:25 am

    Also this one, of course: http://www.medialawjournal.co.nz/?p=119.

    [And now for the expected pedantry 🙂 – this could not be a strike – it’s not one of the offences listed in the Bill, and it couldn’t result in a five-year prison term…]

  3. DrakeNZ 3
    16 March 2009 at 8:45 am

    The prohibition is on referring to yourself as “registered” under the new charities act, not from simply referring to yourself as charitable.

    There is a distinction between being charitable in the coloquial or general sense under the old charities act, and been registered under the new act.

    As an aside, appliations with the charities commission currently take around 7-8 months, meaning that perhaps a third of all organisations that are clearly charitable have yet to go up on the website, despite making correct applications.

    From the description I’ve seen so far I can’t see any breach….

    • lprent 3.1
      16 March 2009 at 8:58 am

      Until they are registered they cannot claim to be a “registered charitable trust” if I understand the 2005 act correctly. So McVicar claiming (my bold)

      http://www.safe-nz.org.nz/Press/2009whackylefties.htm
      “The Sensible Sentencing Trust is a registered charitable trust with IRD approved donee status, which means our books are audited and every dollar is accounted for.’

      He is probably breaking the law.

      http://www.charities.govt.nz/news/updates/electronic-guide.htm

      The Charities Act 2005 (“the Act’) was passed in April 2005. The Act established the Charities Commission (“the Commission’) which came into being on 1 July 2005.

      So the SST has been really fast putting in the paper work and getting registration under the new act. Please get a grip and think of timing. If you put an application in, it does not mean that you are registered. It just means that you’re slow on paperwork.

    • mickysavage 3.2
      16 March 2009 at 9:13 am

      It looks like the SST may have also lost it’s IRD status. I wonder if there is a repercussion for advertising that is has this status when it does not. The Charities Website states that “[c]harities have until 1 July 2008 to register before their tax exemptions are affected.”

      This link is at http://www.charities.govt.nz/news/updates/electronic-guide.htm

  4. vidiot 4
    16 March 2009 at 8:46 am

    And this is why the left lost in 2008.

    Does the Charities Act 2005 supersede the Charitable Trust Act 1957?
    No. They are separate Acts for separate purposes.

    If an organisation is already a Charitable Trust, it will still need to register with the Commission if it wishes to receive or maintain tax exempt status and become a registered charitable entity.

    The Charitable Trusts Act 1957 is still current law – http://www.societies.govt.nz/cms/charitable-trusts/learn-about-charitable-trusts/what-is-a-charitable-trust

    The info is out there, you just need to learn how to read. There is nothing that McVicar has said in his statement “The Sensible Sentencing Trust is strictly a non-political organisation; with IRD approved donee and charitable trust status.” that is either misleading or illegal.

    • lprent 4.1
      16 March 2009 at 9:02 am

      If you read the relevant act’s, the key word is “registered”.

      http://www.safe-nz.org.nz/Press/2009whackylefties.htm
      “The Sensible Sentencing Trust is a registered charitable trust with IRD approved donee status, which means our books are audited and every dollar is accounted for.’

      Please learn to read the posts before trying to make up your own law using quotes that were not the subject of the post

      This is why the right are too moronic to be in government – they have a loose interpretation of law. For some reason they only like the laws that favour them.. For instance look at the ministerial handling of employment law…

      http://www.thestandard.org.nz/a-bunch-of-clowns/

      • Tim Ellis 4.1.1
        16 March 2009 at 9:47 am

        LP my reading of the Act is that the key word is not “registered”. The relevant expression is “registered charitable entity”. This is very prescriptive. McVicar doesn’t use this expression.

      • Draco T Bastard 4.1.2
        16 March 2009 at 1:13 pm

        Not a loose interpretation of the law – a very specific interpretation, one that allows them to break it.

    • Draco T Bastard 4.2
      16 March 2009 at 1:11 pm

      There is no way that the SST is a non-political organisation. There entire modus operandi is to influence the politics of the country.

  5. lprent 5
    16 March 2009 at 9:11 am

    Put the link to the related press release and the relevant quote from it.

    This could be the source of the confusion evident from DrakeNZ and vidiot.

  6. vidiot 6
    16 March 2009 at 9:14 am

    Lprent :

    From: http://www.societies.govt.nz

    Number 1188021
    Name THE SENSIBLE SENTENCING GROUP TRUST

    Incorporated 01-FEB-2002
    Current Status REGISTERED
    Organisation Type Charitable Trust

    So are they or are they not a REGISTERED CHARITABLE TRUST ?

    And the quote is from the front page on – http://www.safe-nz.org.nz/

  7. lprent 7
    16 March 2009 at 9:17 am

    Yes registered under the 1957 act.
    In the 2005 act

    However, section 37(1) of the Charities Act states clearly that “[a] person must not use a style or title including the words “registered charitable entity’. A “charitable entity’ is defined as including ” the trustees of a trust that is or are registered as a charitable entity under this Act’. It appears that this only includes entities under the new Act.

    So McVicar cannot claim that the SST is a registered charitable trust – he is not under the 2005 act. The significant difference is that the 2005 act requires far more transparency of donation sources. That is of course what we have been asking – has the sensible sentencing trust receive donations from GEO group?

  8. higherstandard 8
    16 March 2009 at 9:24 am

    Honestly who gives one ?

    McVicar must be pissing himself laughing that he’s getting this coverage.

    • lprent 8.1
      16 March 2009 at 9:26 am

      Not according to the rant in their press release. Seems quite upset about it. I wonder why? Perhaps they are operating as the procurement arm of GEO Group in getting more prisoners for longer. Helps with the profit margins. If so then that means they are hardly a charity

    • Tigger 8.2
      16 March 2009 at 9:28 am

      Yes, because people prodding around your charitable status on a left-wing blog is JUST the sort of coverage McVicar is after…

      • RedLogix 8.2.1
        16 March 2009 at 10:00 am

        hs,

        Of course no-one technically ‘gives one’ about SSt’s charity status, registered or otherwise. The real issue is that the 2005 Act requires an increased level of scutiny and transparency that SST seem to be keen on avoiding.

        It is one more element in a now established pattern of evasive and opaque behaviour that any overseas based activist would instantly red-flag as ‘astroturfers at work here’.

  9. ieuan 9
    16 March 2009 at 9:51 am

    Look this shouldn’t be too hard to sort out.

    Someone pick up the phone and ring the Charities Commission (number is 0508 242 748) and say, ‘I’d like to make a donation to The Sensible Sentencing Trust who say on their web site they are a ‘charitable trust’, I’d like to confirm that they are before making a donation’. The commission can check their records and let you know if they are registered or if they are in the process of being registered. They will also be able to tell you if they can use the term ‘charitable trust’ if they are not registered.

    I’ve done this for charities that ask for donations from my company, it is an easy way to check if they are a legitimate charity or not.

  10. BLiP 10
    16 March 2009 at 10:12 am

    I called – spoke to Vena in the call centre – she tells me that her records show that the Sensible Sentencing Group Trust is NOT registered, although an application was received in June 2008 and has not yet been approved. This means all donations are NOT subject to the tax rebate and won’t be until the application has been approved because the provision cannot be applied retrospectively. However, they are allowed to call themselves a charitable trust, but not a registered charitable trust.

    Good work The Standard – take a bow. Will anyone be following up with a complaint to the Commerce Commission for the Sensible (hahahaha) Sentencing Trust’s false advertising?

    • BLiP 10.1
      16 March 2009 at 4:10 pm

      Thought I’d better double check – I’ve learned its not a good idea to rely on information provided by a CSR – as it turns out, the tax refund status will be backdated to the date of application which, in the case of the SST, is June 2008. This second opinion – I think her name was Saga – confirmed that the SST is NOT registered at this time. Perhaps we’re splitting hairs – they are NOT registered but, when they are finally registered, it will apply as from June 2008.

  11. ieuan 11
    16 March 2009 at 10:42 am

    I don’t want to upset the apple crate here but where do they say they are a ‘registered charity’?

    On their website they say they have ‘IRD approved donee and charitable trust status’ they don’t call themselves a registered charity.

    Still I am sure they are happy to give the impression they are a charity when people are making donations.

    • Tane 11.1
      16 March 2009 at 10:44 am

      The press release says: “The Sensible Sentencing Trust is a registered charitable trust”. According to the Charities Commission they’re not.

      I’m not a lawyer, but if anyone here has any expertise feel free to get in touch –

      thestandardnz AT gmail DOT com

    • lprent 11.2
      16 March 2009 at 11:52 am

      Check the press release in the post.

  12. Ianmac 12
    16 March 2009 at 10:55 am

    In any case, I wonder if GEO would make a donation to a registered Trust who in turn makes a donation to SST. An original idea?

    • Tane 12.1
      16 March 2009 at 11:04 am

      Seeing as they’re belatedly registering, I suspect if they are taking donations they’d rather not disclose they’ll be frontloading it so the money’s in the bank before they have to declare anything.

      Of course, in the absence of any hard information this only educated guesswork.

  13. George Darroch 13
    16 March 2009 at 10:58 am

    Who do you need to go to get a prosecution? If doing so forces them to open their accounts as is required under the law… could be very interesting.

  14. vidiot 14
    16 March 2009 at 11:35 am

    Educated Guesswork ?

    Rofl more like making shit up and hoping that it sticks.

  15. Tane 15
    16 March 2009 at 11:43 am

    No, it’s one of the basic principles of investigative journalism. You look at how an organisation operates, forumlate a hypothesis, ask some questions, see what the responses are, and use that information to ask even more questions until you’ve eventually uncovered some answers.

    We know SST is cagey about its funding. We know they’ve deliberately avoided disclosing it at every opportunity. We know that similar organisations overseas have been funded by the private prison industry, and we know that SST had studiously avoided denying the same is happening with them. And we now have information that suggests they may be in breach of the Charities Act.

    Any speculation should clearly be flagged as such, but there’s nothing outrageous or defamatory being discussed here.

    • Graeme 15.1
      16 March 2009 at 1:12 pm

      Any speculation should clearly be flagged as such, but there’s nothing outrageous or defamatory being discussed here.

      Come on … statements like this:

      … the SST may have committed an offence. Section 38 states that “[e]very person who acts in contravention of section 37(1) commits an offence and is liable on summary conviction to a fine not exceeding $30,000′.

      …

      Could this be strike one? If so should we lock the SST up and throw away the key?

      And especially this:

      Kind of ironic that an organisation that claims to be about law and order can’t seem to operate with either.

      Are clearly capable of being defamatory.

      • Ianmac 15.1.1
        16 March 2009 at 1:25 pm

        Graeme: Defamatory? Huh? Seems to me, to be explanations about the possible outcomes.
        “If you rob a dairy with the help of a gun then these are the possible outcomes when you are caught. OK?”
        I wonder why you are trying to down-play this issue?

        • Graeme 15.1.1.1
          16 March 2009 at 2:16 pm

          I’m not trying to downplay this issue. Indeed, just the opposite: I’m pointing out how serious these allegations are – so serious, that they might well be defamatory if untrue. In a comment near the top, I point to evidence of a a contempt of court by the SST.

          Why are you trying to downplay this issue? You don’t seem to think accusing the SST of hypocrisy and illegal behaviour is even serious enough to be defamatory if found to be untrue. I think they are at least that serious.

          Seriously, though, why do you think I’m trying to down-play this issue?

          This is my third post in this thread. The first linked to an allegation by a respected media lawyer arguing that in offering a monetary reward to someone for evidence leading to a conviction, the head of the SST may have committed a contempt of court. And the second pointed out that Tane’s understanding of the law of defamation may be a little deficient.

          • Tane 15.1.1.1.1
            16 March 2009 at 2:49 pm

            Graeme, I’m aware you can construct a case for defamation out of nearly anything, but a successful case is something else entirely. I don’t think Garth McVicar would have much of a case with anything that’s been said here.

            Besides, I suspect that drawing attention to the SST’s finances through a long, expensive and ultimately failed defamation suit is the last thing he’d want.

  16. Simon-3 16
    16 March 2009 at 2:26 pm

    It’s extremely satisfying to drop by The Standard [deleted].

    [lprent: It is always extremely satisfying to kick a banned troll (again) for trolling their lines yet again. Adding to auto-moderation]

    • BLiP 16.1
      16 March 2009 at 2:54 pm

      Are you saying that the majority view in New Zealand is that it is okay for a charitable trust which wants people in jail for longer to play peek-a-boo with the law? Why don’t you scamper oiff and get back to your Truth jumbo-crossword and leave the blogging to the grown ups – there’s a good boy.

  17. Ianmac 17
    16 March 2009 at 3:23 pm

    Graeme: And further to Tane, surely the answer to being defamed is to prove that no money was coming from GEO. Simple enough for a body who believes in accountibility.
    (Actually I wonder where Family First get their money from??)
    Are you really all that concerned for the welfare of the Standard? Doesn’t seem to fit your words????

    • Graeme 17.1
      16 March 2009 at 4:22 pm

      I’m not at all concerned for the welfare of the Standard. I’m a lawyer, and one of the things I find myself doing on the Internet is correcting erroneous legal statements. I do it quite a bit. I didn’t do it because I think the Standard needs to be careful about being sued, I did it because I thought Tane was wrong.

      I don’t know much about charitable trusts law, and haven’t the time to do the type of due diligence I’d want to before offering an opinion on the the more direct matter at hand, but I know a bit about media law so made a reasonably straighforward response to an observation on that topic.

      As for Family First – are you concerned that they are secretly funded by the anti-prison lobby for their advocacy to ensure parents aren’t sent to prison for smacking? Or is Fisher & Paykel trying to sell more ovens by covertly funding the “What your kids really want for dinner … is you” campaign?

      • DeeDub 17.1.1
        16 March 2009 at 4:42 pm

        You must be a really successful lawyer to have the time to take part in this discussion and go around ‘correcting erroneous legal statements’ online?

        All the lawyers I know are too busy working their asses off trying to keep their client base right now to be lurking on blogs and correcting people out of the kindness of their hearts . . .

        😉

      • Graeme 17.1.2
        16 March 2009 at 11:52 pm

        Lawyer, but not law firm. No clients. But less pay too.

  18. Rex Widerstrom 18
    16 March 2009 at 3:41 pm

    I was not well for most of last week so a belated congratulations to Tane for the original investigative work and to mickeysavage for the follow-up.

    I’ve also read with interest the debate above, including the wafer-thin parsing of “registered” and “charitable”.

    [As an aside, I’d have thought there was something slightly misleading about the form of words “…with IRD approved donee status”, too. Surely a potential donor could easily misinterpret this as meaning their donation was tax deductible? After all, that’s one of the two main reasons charities register with the IRD (the other being their wn tax status). Yet as BLiP has revealed above (and well done also for the investigative work) donations are not deductible].

    What immediately occurs to me, however, as a former journo and editor, is why this work is being handled solely by the unpaid contributors to a blog?

    With all due modesty if I were still working for a media outlet in NZ I’d have been on to it long ago. And if I’d been asleep at the keyboard till now I’d certainly be following these leads (and hopefully doing a better job than most media of acknowledging the source).

    A single interview (a doorstop, if necessary) with McVicar asking him to reveal the noble, community-minded donors to his fine and not-at-all-dodgy organisation would do the trick. Either there’d be an opening of the books, or a blanket refusal to do so. Either one would be edifying for the watching populace, I imagine.

    • Pascal's bookie 18.1
      16 March 2009 at 5:18 pm

      A single interview (a doorstop, if necessary) with McVicar asking him to reveal the noble, community-minded donors to his fine and not-at-all-dodgy organisation would do the trick. Either there’d be an opening of the books, or a blanket refusal to do so. Either one would be edifying for the watching populace, I imagine.

      Good god Rex. Think about what you are saying. Your coming perilously close to advocating journalism here mate. The media’s job is to report what Garth McVicar has to say, when he wants them to. In return Garth gives reliably sensationalist copy on short notice. If the media start asking pesky questions of the sort people are talking about here, it puts the whole model at risk.

      • Rex Widerstrom 18.1.1
        16 March 2009 at 6:31 pm

        Perhaps when he’s not busy (yes, I know…) Lynn could be persuaded to write the code for a McVicar quote generator? You know, one of those things which just spits random collection of phrases like “decades of soft liberalism”, “vicious animals” and “harsher penalties”. Oh, and “day of reckoning”… that one sounds all Charles Bronson-ish and has been known to make some hacks have just the teensiest orgasm.

        Or they could follow National’s model and tender it out. Sure McVicar gives it to them for nothing but there are others so desperate for a headline they’ve been known to capitalise on their own child’s suffering to get a Wimmins Daze double pager *cough*Michael Laws*cough*.

        Such people would probably pay to have their phlegmatic ranting published (provided it was accompanied by a suitably fetching portrait of themselves), thus partially compensating the meeja for the fact no one buys their hopeless rags anymore and everyone Tivos past the bloody commercials.

  19. QoT 19
    16 March 2009 at 8:16 pm

    Here’s the big problem.

    The SST will say, with absolutely no irony, that “those who have nothing to hide have nothing to be afraid of”.

    They will say, “if you’re not a criminal, you don’t have to worry”.

    I don’t necessarily believe that an organisation *must* reveal its funding sources.

    But when it’s an organisation that constantly goes on and on and on about how Crime Is Bad and We Are Good and If You’re Not Doing Anything Wrong You Need Not Fear The Law … well, what the hell should they have to hide?

    • Draco T Bastard 19.1
      17 March 2009 at 12:57 am

      I don’t necessarily believe that an organisation *must* reveal its funding sources.

      When it’s a political organisation like the SST then it damn well should reveal its funding.

  20. Killinginthenameof 20
    17 March 2009 at 1:05 am

    Here’s a keeper from their press release archive!

    “But the National Spokesman for the SST, Garth McVicar, said “They seem to conveniently forget that these laws will only affect those who break the law…”

    I often think about the SST, one of the things I often wonder is how smart Garth McVicar is. There is two options really, he is either very smart playing a media savvy game, or a complete moron, bayed on by idiots (whom many of which should know better), and convinced he is the smartest man in the world. Quotes like the one above put him very firmly in the second catagory. Appealing to the moron in people indeed.

  21. William 21
    17 March 2009 at 3:24 am

    A “SINGLE VOICE PROJECT’ is the official name of the petition sponsored by: The National Public Service Council To Abolish Private Prisons (NPSCTAPP)

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    Prior to the past month, and the fiasco of Fannie Mae, Freddie Mac, AIG, Lehman Brothers, and now the “Big Three’ American Automobile manufacturers, the NPSCTAPP has always felt compelled to highlight the “moral Bottom line’ when it comes to corrections and privatization. Although, we remain confounded by the reality that our government has allowed our justice system to be operated by private interests. The NPSCTAPP philosophy has always been “justice’ should not be for sale at any price. It is our belief that the inherent and most fundamental responsibility of the criminal justice system should not be shirked, or “jobbed-out.’ This is not the same as privatizing the post office or some trash pick up service in the community. There has to be a loss of meaning and purpose when an inmate looks at a guard’s uniform and instead of seeing an emblem that reads State Department of Corrections or Federal Bureau of Prisons, he sees one that says: “Atlas Prison Corporation.’

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    There is an urgent need for the good people of this country to emerge from the shadows of cynicism, indifference, apathy and those other dark places that we migrate to when we are overwhelmed by frustration and the loss of hope.
    It is our hope that you will support the NPSCTAPP with a show of solidarity by signing our petition. We intend to assemble a collection of one million signatures, which will subsequently be attached to a proposition for consideration. This proposition will be presented to both, the Speaker Of The House Of Representatives (Nancy Pelosi) and the United States Congress.

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    National Community Outreach Facilitator
    The National Public Service Council To Abolish Private Prisons
    P.O. Box 156423
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  22. mickysavage 22
    17 March 2009 at 8:34 am

    Hi Graeme

    I appreciate your concern but I cannot see how the comments are defamatory. A few defences spring to mind:

    1. They are heavily conditional, there is an “if” and a “may” there. All that I was saying was that if the law is X then the SST is prima facie in breach of it. Truth is still a defence isn’t it?
    2. The statement contains a fair comment and debate about a public issue.
    3. Qualified privilege may apply. If politicians are fair go because of their public position then I do not see why the SST should not be in the same position. The Lange v Atkinson decision springs to mind.

    The last part of my statement is obviously a rhetorical flourish. The offence complained of is punishable by fine only and cannot be published by imprisonment nor constitute a “first strike” unless the most extreme amendments are made to the Bill. I was attempting to be ironic and engage in the same sort of over the top rhetoric that the SST engages in.

    If you are correct then Stephen Price, a respected media lawyer, may also be in trouble because of his allegation that the SST had committed contempt of court, a far more serious allegation than mine. Your initial comment links to his statement.

    Finally the SST proudly has a “Stop internet censorship, free speech online” badge on its website. It would not be a good look for it to try to use the law of defamation to stifle what is a legitimate debate about it’s funding.

    • Graeme 22.1
      17 March 2009 at 8:59 am

      It wasn’t concern 🙂

      1. Yes. Truth is a defence.
      2. My suggestion of defamatory words was more directed at Tigger’s comment than your quote.
      3. You might think that about qualified privilege, but I doubt very much it would be extended that far, that fast.

      I don’t really care about the SST, I doubt very much that they’ll do anything about it, my comment really was just directed at what I considered a too broad statement by Tane that “there’s nothing outrageous or defamatory being discussed here.”

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