To be registered as a charity under the Charities Act 2005, a charity’s name must meet the requirements of the Act. The public has been assured that every applicant’s listed name (intended charity name) will be rigorously and meticulously scrutinised by the Charities Commission’s Registration Team, prior to registration (see below).
Section 15(e) of the Charities Act 2005 allows entities such as “The Vegan Society of Aotearoa” that are not legally constituted (i.e. the entity is not incorporated), to be registered as a charity under this name recorded on their trust deed, provided it is not “offensive” or “misleading”. The Vegan Society’s Trust Deed, available on the Charities website (www.charities.govt.nz), is dated 1 May 2010. (Note: The Charities Commission set up in 2005 was disestablished on 1 July 2012 and is now part of the Department of Internal Affairs).
Obscenity and other matters “contrary to public policy”
The Charities Act 2005 says that names of organisations incorporated under the:
- Incorporated Societies Act 1908
- Charitable Trusts Act 1957
- Companies Act 1993
or established or constituted by another Act, comply with section 15 of the Charities Act, so the Commission does not review these names for offensive or misleading criteria.
In November 2006 The Charities Commission issued a helpful two page information sheet entitled “The name of your organisation”, for use by those making an application for charity status on behalf of a legally constituted entity. The updated version dated October 2008 states on page 2:
“What criteria do we [the Commission] use to decide whether a name is offensive?”
The three questions (criteria) addressed by scholars in the Commission Registration Team are…Is the proposed charity name….?
 contrary to public policy (not acceptable to the general public, for example – a name that shows racial prejudice or includes “hate” speech).
 liable to offend a particular section of the community or a particular religion.
The fact that obscenity is one of three criteria applied by the Commission in its consideration of the appropriateness of charity names is very significant.
The Society for Promotion of Community Standards Inc. (“SPCS”), a registered charity (Reg. No. CC20268), fully endorses the rigorous application of this criterion (obscenity) which forms part of the wider policy adopted by the New Zealand Companies Office when dealing with the incorporation of companies and other legal entities as well as establishing intellectual property rights (trade names etc.).
SPCS has as one of its seven objects recognised by the Charities Commission on 17 December 2007 as constituting a “charitable purpose” …..
S. 2(d) “To focus attention on the harmful nature and consequences of sexual promiscuity. obscenity, pornography and violence…”
The harmful nature of “obscenity” (in Latin obscenus, meaning foul, repulsive, detestable) is well-understood by the majority of educated, fair-minded, responsible citizens, law-makers, informed academics, committed members of all faith communities, and many others. Legislation exists dealing with it so as to prevent injury to the public good (see below).
Obscenity (perhaps related to the Latin word caenum filth) is widely recognised both in New Zealand and the majority, if not all, other countries, to be “contrary to public policy” – because it “strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorent, or disgusting, or is especially inauspicious.”
Part 2 of S. 48 of the Police Offences Act, 1927, entitled “Using foul language in a public place”, states:
“Any person who uses profane, indecent or obscene language in any public place or within the hearing of any person in such a place is liable to imprisonment..” [Emphasis added]
These offences are now dealt with under
- s.4 of the Summary Offences Act 1981 entitled “Offensive [obscene] behaviour or language”.
- under the category “Crimes against morality and decency” in sections 124-126 of the Crimes Act 1961, S. 124 deals with the “Distribution or exhibition of indecent [obscene] matter”.
The Charities Commission was quite right to seek to prevent the registration of charities with obscene names – ones that were likely to cause offence and were “contrary to public policy”. One commercial distributor of obscene hardcore pornography has already approached the Charities Commission seeking to have an entity registered as a charity under a name close to or identical to his porn-related marketing operation.
The meaning of “Objectionable” (including obscene) content is clearly set out under section 3 of the Films, Videos, and Publications Classification Act 1993 under the heading “Meaning of objectionable”.
S. 3(1) “For the purposes of his Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.” [Emphasis added]
S. 3(2) specifies certain obscene, offensive, indecent and lewd content, which if depicted, described etc in such a way that would tend to promote, or support any of the activities listed; automatically means the publication is deemed to be “objectionable.”
New Zealand Customs Law empowers Customs officers to seize indecent (obscene) publications and other items at our border controls. There are very good reasons why obscene material is intercepted and the distributors of such vile content charged by the NZ Police with offences under the legislation listed above.
The importation and dissemination of obscene and indecent material, the bulk of it hardcore pornography, is “contrary to public policy” and is “injurious to the public good”. The host of tax-payer funded enforcement agencies seeking to police the dissemination of illegal, obscene, indecent and objectionable content, is testimony to the seriousness with which authorities treat breaches of the law in this area. One particular New Zealand pornographer has 33 convictions for distributing indecent and obscene pornographic material.
While it is true that New Zealand law does not specify the legal definition of “obscenity”, it is a well understood term as evidenced by the fact that the Charities Commission’s information material uses the term “Obscene” without any explanation or qualification as to its meaning. It is both disingenuous and absurd for academics to try and argue that that in a “post-modern world” the term “obscene” has no real meaning because it is “too broad”. The same applies to the term “pornography”.
Charity names that are designed to “offend a particular section of the community or a particular religion” would indeed be against public policy. Our Human Rights Act 1993 safeguards the rights of specified classes of persons to be protected against discrimination in the workplace etc. Obscene slurs directed at any of these classes of persons would contravene the Act. Members of the public have a number of pieces of legislation to appeal to if they seek redress for perceived discrimination.
To counterbalance all of these rights that certain classes of people have, is the New Zealand Bill of Rights 1990. Section 5, 6 and 14 enshrine the “rights to freedom of expression” for those who sincerely wish to present their views unfettered by the state on controversial topics.
The charge of “racial prejudice” can be mere empty rhetoric and/or name calling unless backed up with real evidence of harm inflicted. New Zealand has no “hate speech” legislation as such, so merely asserting this charge each time one reads something one does not agree with, is puerile. Every citizen has a right to engage in robust debate on controversial topics pertaining to religion, race, politics, sexuality and morals etc. Any attempt to stiffle and suppress these rights strikes a blow to one of the core principles of western democracy.
Finally, there is no basis in law for any attempt to suppress freedom of expression, by the mere assertion that a viewpoint or analysis of opinion etc. is “contrary to public policy”.
“… the doctrine (of public policy) should be involved only in clear case, in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds.” (Fender v Mildmay (1937) 3 All ER 402).
The name of your organisation