The Actions of followers of religions are subject to law
54 CLR 120, 57 ALJR 785, 14 ATR 769, 49 ALR 65, 83 ATC 4652
The Church of the New Faith Appellant, Appellant;
The Commissioner of Pay-Roll Tax (Victoria) Respondent, Respondent.
On appeal from the Supreme Court of Victoria.
9-11 November 1982
27 October 1983
JUDGES: Mason A.C.J., Murphy , Wilson , Brennan and Deane JJ.
SUBJECT: Pay-roll Tax (Vict.) — Exemption — Religious or public benevolent institution — Scientology — Religion — Pay-roll Tax Act 1971 (Vict.), s. 10(b).
Section 10 of the Pay-roll Tax Act 1971 (Vict.) exempted from pay-roll tax wages paid or payable “by a religious or public benevolent institution, or a public hospital”.
The Church of the New Faith was incorporated in 1969 under the Associations Incorporation Act 1956 (S.A.) and was registered in Victoria as a foreign company. The members of the Church of the New Faith are persons who accept and follow the writings of Lafayette Ronald Hubbard, an American with a substantial following in the United States, the United Kingdom and Australia. The system or conglomeration of ideas and practices contained in and advocated by his writings is known as “Scientology” and those who believe in those ideas and practices are known as “scientologists”. The case was presented on the basis that if Scientology as exemplified by the Church of New Faith was a religion it was exempt from pay-roll tax. The issue of whether the corporation was a “religious institution” within the meaning of s. 10 of the Pay-roll Tax Act was not argued.
Held that the beliefs, practices and observances of the Church of the New Faith were a religion in Victoria.
Per Mason A.C.J. and Brennan J. For the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.
Per Wilson and Deane JJ. No single characteristic can be laid down as constituting a formularized legal criterion of whether a particular system of ideas and practices constitutes a religion, but the following criteria are helpful: that the particular collection of ideas and/or practices involves belief in the supernatural, i.e. a belief that reality extends beyond that which is capable of perception by the senses; that the ideas relate to man’s nature and [*121] place in the universe and his relation to things supernatural; that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance; that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or groups; and that the adherents themselves see the collection of ideas and/or practices as constituting a religion.
Per Murphy J. The categories of religion are not closed, but the following bodies are religious: any body which claims to be religious and whose beliefs or practices are a revival of, or resemble, earlier cults; any body which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, a physical invisible God or spirit, or an abstract God or entity; any body which claims to be religious and offers a way to find meaning and purpose in life.
Per curiam. The test of religion should not be confined to theistic religions.
In re South Place Ethical Society; Barralet v. Attorney-General,  1 W.L.R. 1565;  3 All E.R. 918, not followed.
Decision of the Supreme Court of Victoria (Full Court): Church of the New Faith v. Commissioner for Pay-roll Tax,  1 V.R. 97, reversed.
APPEAL from the Supreme Court of Victoria.
The Church of the New Faith Incorporated was incorporated under that name on 31 January 1969 under the Associations Incorporation Act 1956 (S.A.). The corporation was registered in Victoria under the Companies Act 1961 (Vict.) as a foreign company. Subsequently, a change in name to “The Church of Scientology Incorporated” was registered in South Australia. Though no change of name was registered in Victoria, the corporation used and was apparently known by its new name in that State. The corporation was assessed to pay-roll tax under the Pay-roll Tax Act 1971 (Vict.). The wages assessed as liable to tax were paid or payable during the period from 1 July 1975 to 30 June 1977. The corporation objected to the assessment upon the ground that the wages were exempt under s. 10(b) as wages paid or payable by a religious institution. The objection was disallowed. At the request of the corporation, the Commissioner treated the objection as an appeal and referred it to the Supreme Court of Victoria. Crockett J. and, on appeal, the Full Court (Young C.J., Kaye and Brooking JJ.) held that the corporation was not a “religious institution” for the purposes of the Act and upheld the assessment: Church of the New Faith v. Commissioner for Pay-roll Tax(1). The corporation applied for special leave to appeal to the High Court from the decision of the Full Court. The application came before Gibbs C.J., Wilson and Brennan JJ. on 30 July 1982 when it was ordered that it should be [*122] referred to the Full Court with leave to argue as on appeal. When the adjourned application came before the Court counsel were invited to argue the application fully, so as to canvass the issues of the appeal which would arise if special leave were granted.
D. M. J. Bennett Q.C. (with him L. Glick), for the appellant.The meaning of religion for legal purposes is found in statements in Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonwealth(2). Many other cases are irrelevant because they deal not with the meaning of the word “religion” or the adjective “religious” in isolation but with the adjective in conjunction with a noun: Reg. v. Registrar-General; Ex parte Segerdal(3). There are other cases where the question has turned on the corporate structure of the organization: Theosophical Foundation Pty. Ltd. v. Commissioner of Land Tax (N.S.W.)(4). [He also referred to Young Men’s Christian Association of Melbourne v. Federal Commission of Taxation(5); Kick v. Donne(6); Berry v. St. Marylebone Borough Council(7); Baxter v. Langley(8); and Barralet v. Attorney-General(9).] The First Amendment to the Constitution of the United States provides that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”. As a result of this provision, litigation has arisen not only over the traditional issues of conscientious objection and rating legislation but also over the constitutional validity of laws dealing with religious matters. In many cases courts have had to define “religion” and to ascertain whether particular groups fall within the meaning of the word. In a number of cases courts have referred to the difficulty of defining religion, e.g. Fulwood v. Clemmer(10); Washington Ethical Society v. District of Columbia(11); United States v. Kuch(12). The courts have held that a statement by an individual or by a group to the effect that the group is not a religion is not a critical admission in litigation by that person or group seeking to establish that it is: [*123] Welsh v. United States(13); Malnak v. Yogi(14); Borchert v. City of Ranger(15). This uncertainty and disagreement about the meaning of religion is relevant both to the admissibility of expert evidence and the question of whether differing statements by different spokesmen for groups at different times of whether the group is a religion, reflect on the credibility of the group. It is relevant here because it demonstrates the difficulty of finding a starting point and hence the importance of looking further for any such assistance that the courts may obtain from courts in the United States. [He also referred to Davis v. Beason(16); United States v. Kauten(17); Washington Ethical Society v. District of Columbia; Fellowship of Humanity v. County of Alameda(18); Torcaso v. Watkins(19); United States v. Seeger(20); Welsh v. United States.] In Malnak v. Yogi three criteria were provided: first, the nature of the ideas in question — they must be “ultimate” ideas dealing with matters such as the meaning of life and death, man’s role in the universe, the proper moral code of right and wrong and the like; second, the group must lay claim to an ultimate and comprehensive truth; third, formal external or surface indications such as services, ceremonial functions, the existence of clergy, structure and organization, efforts at propogation etc.
If by God is meant the Supreme Being, Creator and Ruler of universe, with the usual Western connotations of an Ultimate Deity who is personal and with whom man can or should have a relationship, it must be noted there are religious traditions without a God. In classical Hindu thought there are many gods but beyond all the gods there is one Ultimate Reality (Brahman) beyond description or comprehension, who is not the creator, who is utterly transcendent to creation, and to whom no worship is directed. The word is neuter, so that “who” is an inappropriate pronoun; cf. Benjamin Walker, The Hindu World; An Encyclopedia of Hinduism (1968), pp. 393-395, Margaret and James Stutley, A Dictionary of Hinduism (1977), pp. 49-51. It can be said that there is no God in Hinduism in the sense that there is a God in Judaism, Christianity or Islam. There is but an Ultimate Principle, abstract, impersonal and transcendent, which is, largely, irrelevant to man’s immediate concerns. Of the six classical Schools of Hindu philosophy, one (Sankhya) is clearly atheistic; cf. Heinrich Zimmer, [*124] The Philosophies of India (1964), pp. 280-294. Buddhism is also often said, at least in its Theradavan tradition, to be atheistic or non-theistic; cf. Helmuth von Glasenapp, Buddhism — A Non-Theistic Religion (1970). The Jain religion (founded circa 460 B.C. by Mahavira, a contemporary of the Buddha, in India) also postulates no Supreme Being or Creator or First Cause. Two of the Chinese religious traditions — Confucianism and Taoism — may also be seen to be without the concept of a person Creator God. Both recognized an abstract principle behind and beyond all things, but it did not fit the Western definition of “God”; cf. Ninian Smart, The Religious Experience of Mankind (1977), pp. 194-220. Buddhism requires separate consideration because there are a number of clear parallels between Scientology and Theravadan Buddhism. It is clear from the evidence of Hubbard’s references to Buddhism (e.g. Dianetics, The Evolution of a Science, p. 6) that he has been influenced by Buddhism. (1) In Scientology there is no clear concept of a Supreme Being, a Creator, a First Cause, and certainly no concept of such a Being who has any relevance to man. (2) It is essentially concerned with enabling the individual to attain liberation from a limited and limiting world in which he is unable to experience his true nature. (3) This liberation is to be attained through the working out of a process of enlightenment which is essentially a practical technology requiring virtually no “belief”, but rather personal application of “scientific” principles inherent in nature. (4) This technology was discovered by a self-enlightened man through his own quest for truth, enlightenment and liberation: it is not a divine revelation, but a practical technique, in contrast to the theoretical teachings of other religions. (5) The technology is a complete system of mind training based upon the analysis of consciousness. (6) It involves acceptance of concepts of samsara (the idea popularly understood as reincarnation in the West) and karma (the principle that brings to each individual the fruits of his actions in past lives). (7) There is no sense of sin or guilt as generally understood in the West: man offends not against an absolute moral code nor against the will of God, but only against himself, since he will, ultimately, be limited or liberated as the result of his own actions through the law of karma. (8) Man is personally responsible for his own life, destiny and future; he can have recourse to no-one or nothing outside himself. (9) There is a series of “fetters” or “hindrances” to be overcome or eliminated in the process of liberation; these are prescribed and defined in detail, with accounts of each stage of the process being delineated. (10) The path to liberation is a graduated one with man passing through a series of defined stages, each involving the breaking of certain bonds and the attainment of certain freedoms and powers. (11) The highest states [*125] of liberation of Scientology and Buddhism show distinct parallels: one might equate the Bodhisattva of Theravada Buddhism and the Clear of Scientology, and the Arhat with the Operating Thetan. In Theravada, the Bodhisattva is a candidate for Buddhahood; the word derives from bodhi (wisdom) and sattva (essence) and means one whose being or essence is enlightened by direct perception of the Truth. In Theravada, the Arhat is the ideal, one who has eliminated all the bonds and attains liberation. (12) Superhuman powers are claimed for individuals attaining the higher degrees of progress toward enlightenment; these include the ability to project beyond the body and to gain knowledge of former lives. (13) The ultimate goal in Buddhism is nirvana which is understood as complete freedom, liberation, enlightenment, and can be seen to equate with the Total Freedom of Scientology. (14) In the following of the process of technology of enlightenment, there is no reason why one could not adhere to any religious or philosophical system, or to none. (15) The world is essentially the creation of the human mind and has reality only in so far as it is accepted by man. (16) There are parallels between the mental “exercises” or techniques of Buddhism and those of Scientology, especially as the techniques associated with Right Awareness, Right Effort and Right Meditation have been developed in Theravada Buddhism. [He referred to Edward Conze, Buddhism; Its Essence and Development (1959); Bruno Cassirer, Further Buddhist Studies (1975); A Short History of Buddhism (1980); Walpola Rahula, What the Buddha Taught (1978); H. Wolfgang Schumann, Buddhism: An Outline of its Teachings and Schools (1973); Helmuth von Glasenapp, Buddhism — A Non-Theistic Religion (1970); Heinrich Zimmer, Philosophies of India (1964); Winston L. King, Buddhism and Christianity (1962).] While the areas covered by a group of beliefs claiming to constitute a religion need to be reasonably comprehensive, there is no reason why they cannot be indeterminate in particular areas leaving it to the individual to fill those areas as he sees fit. He may fill them, in particular, by accepting the whole or part of the tenets of another religion. [He referred to Huston Smith, The Religions of Man (1965), p. 85; H. P. Blavatsky, The Key to Theosophy (1889), p. 19; Walpola Rahula, What the Buddha Taught (1978), p. 8; Don Aelred Graham, Zen Catholicism (1963), p. 155; Thomas Merton, Mystics and Zen Masters (1969); Zen and the Birds of Appetite (1968); William Johnston S.J., Christian Zen (1971); Still Point: Reflection on Zen and Christian Mysticism (1970); and J. K. Kadowaki S.M., Zen and the Bible (1980).] Non-empirical faith is not a necessary element of religion; cf. “Natural Theology”, Oxford Dictionary of the Christian Church; Etienne Gilson, [*126] The Elements of Christian Philosophy (1960), pp. 116-117; H. Wolfgang Schumann, Buddhism; An Outline of Its Teachings and Schools (1973), p. 39. It follows that the fact that Scientology purports to rely on logic and empirical deduction does not disqualify it from being a religion.
D. Graham Q.C. (with him A. J. Myers), for the respondent.It is necessary to examine the facts proved before the trial judge since the applicant bore the onus of proof: Australian Dental Association v. Federal Commissioner of Taxation(21). The relevant issue of fact was decided against the applicant. The judge’s decision on the facts stands and was not displaced on appeal by the Full Court. This is still only an application for special leave. The early literature of Scientology shows an essentially secular and scientific or pseudo-scientific character an absence of a religious content or of claims that Scientology is a religion. [He referred to Hubbard: The Religion of Scientology or Scientology and World Religion Emerges in the Space Age (1974), p. 49; Dianetics: The Modern Science of Mental Health (1976); Science of Survival Prediction of Human Behaviour; Scientology — A History of Man (1952); The Creation of Human Ability (1954); Dianetics 55; Scientology, The Fundamentals of Thought (1972); Scientology, The Evolution of Science; and to Reg. v. Registrar-General; Ex parte Segerdal(22).] The evidence also reveals: (a) positive denials made on behalf of the Scientology movement that Scientology is a religion; (b) the lack of any church structure in Australia in the early period of the activities in Australia; (c) changes made in the literature of Scientology with the apparent intent of enhancing its appearance of being a religion; (d) the present day appearance of Scientology following the adoption of ceremonies and trappings of more conventional religions; (e) commercial aspects of the applicant’s operations including: (i) sale of service to members; (ii) charges for instruction leading to ordination; (iii) financial arrangements with overseas headquarters; (iv) registration as trade names of words such as “Scientology” and other steps taken to protect trade marks, trade names, patents and copyright, all owned by the founder, L. R. Hubbard; (f) that the E-Meter which is central to the applicant’s activities is at once a lie detector and a religious artefact; and (g) the pan-denominational and non-sectarian aspects of Scientology accommodating adherents of other faiths. The question correctly propounded and in its proper [*127] context is whether the applicant is in a “religious institution” for the purposes of the Pay-roll Tax Act 1971. That question must be approached by looking to the meaning of ordinary words, “religion” and “religious” and determining what they convey as a matter of ordinary understanding. Resort to constitutional cases is not helpful. In particular, resort to American cases decided under the influence of the guarantees of the First Amendment is inappropriate: cf. Davis v. Beason (23); United States v. Ballard(24); United States v. Kuch(25); Malnak v. Yogi(26); and Torcaso v. Watkins(27). The approach of the courts to a constitutional guarantee or to cases where the decision is or may be affected by the presence of such a guarantee in the national constitution must be0 different from that which should be followed here. Some American judgments have gone to extreme lengths in the interpretation of religion to sustain the provisions of State constitutions or statutes, including the conscientious objection provisions of the draft laws. [He referred to Fellowship of Humanity v. County of Alameda(28); Washington Ethical Society v. District of Columbia(29); Welsh v. United States(30); Missouri Church of Scientology v. State Tax Commission(31).] That approach is not warranted in Australia. The question is one of fact having regard to ordinary concepts and understandings. Some decisions in the United Kingdom are of assistance, e.g. United Grand Lodge of Ancient Free and Accepted Masons of England v. Holborn Borough Council(32); Reg. v. Registrar General; Ex parte Segerdal(33); Barralet v. Attorney-General(34). The applicant’s contention that its set of ideas constitutes a religion is open to serious question: it is doubtful whether they postulate a Supreme Being or require a belief in a Supreme Being: the better view is that they do not, but the uncertainty is significant; there is no co-ordinated or systematic body of beliefs and doctrines; and there is no claim to be the true religion. There is not even a requirement of loyalty or exclusive adherence. [*128]
D. M. J. Bennett Q.C., in reply.
Cur. adv. vult.
The following written judgments were delivered:-
1983, Oct. 27
Mason A.C.J. and Brennan J.
Pursuant to the provisions of the Associations Incorporation Act 1956-1965 (S.A.), The Church of the New Faith Incorporated was incorporated under that name on 31 January 1969. The corporation was registered in Victoria pursuant to the Companies Act 1961 (Vict.) as a foreign company. Subsequently, a change in name to “The Church of Scientology Incorporated” was registered in South Australia. Though no change of name has been registered in Victoria, the corporation uses and is apparently known by its new name in that State.
The corporation was assessed to pay-roll tax under the Pay-roll Tax Act 1971 (Vict.). The wages assessed as liable to pay-roll tax under that Act were paid or payable during the period 1 July 1975 to 30 June 1977. The corporation objected to the assessment upon the ground that the wages were exempt under the provisions of s. 10(b). At the relevant time (the section was amended in 1979), s. 10(b) provides:
“The wages liable to pay-roll tax under this Act do not include wages paid or payable —
(b) by a religious or public benevolent institution, or a public hospital.”
The corporation, contending that it was a religious institution for the purposes of this section, objected to the assessment but the Commissioner of Pay-roll Tax disallowed the objection. The corporation requested the Commissioner to treat its objection as an appeal and to cause the objection to be set down for hearing in the Supreme Court of Victoria. Crockett J. dismissed that appeal; the corporation then appealed to the Full Court. The Full Court dismissed the appeal (35) and the corporation now applies for special leave to appeal against that dismissal.
The case has been fought throughout as though the answer to the question, “Is Scientology a religion?”, furnishes the answer to the question whether the corporation was, during the relevant period, a religious institution. That basis has been adhered to in the argument before this Court, and it ought not to be departed from in determining this application. That is not to say that the basis adopted by the parties raised the relevant question for decision. It [*129] does not follow that the common religion of a group stamps a religious character on an institution founded, maintained or staffed by members of that group or that the purpose or activity of such an institution is religious. The basis adopted by the parties in fighting this case has concealed the factors which are relevant to the character of the corporation, namely, the purpose for which the corporation was formed and is maintained and the activities of the corporation. The question whether those factors are religious in nature has not been judicially considered.
Thus special leave is applied for in order to argue on appeal the question chosen by the parties as the issue: Is Scientology a religion? Counsel were invited to argue the application fully, so as to canvass the issues of the appeal which would arise if special leave were granted. Accordingly, the question “Is Scientology a religion?” was argued by reference to all the affidavits read and the oral testimony given before the Supreme Court and by reference to tendered exhibits which included a veritable library of books written by one Lafayette Ronald Hubbard. Scientology is said to have been “discovered, developed and organized” by Mr. Hubbard alone. The library is large, and the meaning of much of it is obscure. An explanation of some parts of those books was undertaken in the oral evidence given before the Supreme Court, but many other parts — some of impenetrable obscurity — were not referred to in the affidavit and oral evidence. Is the Court to examine and to construe the writings of Mr. Hubbard as though they were ordinary documentary exhibits? The obscurity of some of his writings would make that course particularly difficult. There are, however, compelling reasons for not going into areas of obscurity that have not been explained by the affidavits or the oral evidence. The meaning of obscure passages in writings advanced as religious writings is not necessarily ascertained by taking the ordinary meaning of the words used. The true meaning of such passages — i.e., the meaning intended by the author or apprehended by the adherents of the religion — can be furnished by those for whom the passages bear that meaning, but may well be missed by others. Thus it would be erroneous to assume that the account of creation contained in the Book of Genesis is taken literally by many of those who accept its authority as an inspired biblical text. No valid statement can be made as to a tenet of a religion unless its validity as a tenet is recognized by the adherents of that religion. A court cannot be assured that the meaning of writings said to be of religious significance is the meaning which the ordinary reader would attribute to them. When the tenets of a putative religion are to be ascertained, a court would be ill-advised to go searching for tenets [*130] which are said to inhere in obscure writings without the guidance of those who can explain the meaning which the adherents of the religion accept. It would be ill-advised in this case to take the obscure parts of Mr. Hubbard’s writings which have not been illuminated by evidence and, by construing those parts, to find therein the tenets which he intended to teach, or which his followers believe and accept.
Therefore the question which falls for determination by this Court if special leave be granted must be stated anew. The question whether Scientology is a religion cannot be answered, for there seem to be important, perhaps critically important, tenets of Scientology which the parties left without full examination. The question which can be answered is whether the beliefs, practices and observances which were established by the affidavits and oral evidence as the set of beliefs, practices and observances accepted by Scientologists are properly to be described as a religion.
Should special leave be granted in order to consider that question? Two circumstances combine to give an affirmative answer: the legal importance of the concept of religion and the paucity of Australian authority. Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint. Such a definition affects the scope and operation of s. 116 of the Constitution and identifies the subject-matters which other laws are presumed not to intend to affect. Religion is thus a concept of fundamental importance to the law. Moreover, although this case does not arise under s. 116 of the Constitution or under any part of its fourfold guarantee of religious freedom, it is inevitable that the judgments in the Supreme Court, so long as they stand without consideration by this Court, will influence the construction placed upon s. 116 of the Constitution by other Australian courts.
Hitherto the concept of religion has received little judicial exegesis in Australia, whether under s. 116 or otherwise. In Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonwealth(36), only Latham C.J. and McTiernan J. found it necessary to state a view as to the connotation of the term. Since then, the concept has been considered by the courts of the United States and England. The opinions of those courts are helpful, but it is time for this Court to grapple with the concept and to consider whether the notions adopted in other places are valid in Australian law. The disadvantage [*131] in leaving the concept without examination by this Court was manifested by the course of the argument before us. Counsel for the corporation contended for a wide definition of religion in accordance with the indicia of a religion set out by Adams J. in Malnak v. Yogi(37), though it is clear that the formulation of those indicia owed much to the tests adopted by the Supreme Court of the United States in construing particular Acts of the Congress. On the other hand, counsel for the Commissioner contended for a narrow definition which accorded with the test of a religion propounded by Dillon J. in In re South Place Ethical Society; Barralet v. Attorney-General(38) a test which confines the concept to theistic religions. It is undesirable that the clarification of a concept important to the law of Australia should be left to the courts of other countries when there is an appropriate opportunity for the concept to be clarified by this Court. Of course, when Australian courts are engaged in clarifying concepts important to Australian law, they may be aided by appropriate citation from the judgments of courts outside the Australian hierarchy if there is no binding or sufficiently persuasive Australian authority. The differing approaches of the judgments in the Full Court in this case, however, manifest the need for an authoritative Australian exposition of the concept of religion. It is desirable to grant special leave in order to expound, so far as the circumstances of the case require, a concept of religion appropriate to discriminate in law between what is a religion and what is not.
An endeavour to define religion for legal purposes gives rise to peculiar difficulties, one of which was stated by Latham C.J. in Jehovah’s Witnesses Inc.(39):
“It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world.”
The absence of a definition which is universally satisfying points to a more fundamental difficulty affecting the adoption of a definition for legal purposes. A definition cannot be adopted merely because it would satisfy the majority of the community or because it corresponds with a concept currently accepted by that majority. The development of the law towards complete religious liberty and religious equality to which Rich J. referred in Jehovah’s Witnesses Inc.(40) would be subverted and the guarantees in s. 116 of the Constitution would lose their character as a bastion of freedom if religion were so defined as to exclude from its ambit minority [*132] religions out of the main streams of religious thought. Though religious freedom and religious equality are beneficial to all true religions, minority religions — not well established and accepted — stand in need of especial protection: cf. per Latham C.J. in Jehovah’s Witnesses Inc.(41). It is more accurate to say that protection is required for the adherents of religions, not for the religions themselves. Protection is not accorded to safeguard the tenets of each religion; no such protection can be given by the law, and it would be contradictory of the law to protect at once the tenets of different religions which are incompatible with one another. Protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none. The freedom of religion being equally conferred on all, the variety of religious beliefs which are within the area of legal immunity is not restricted.
Of course, the present case is not concerned with a personal freedom of religion; it is concerned with an exemption of a religious institution from a fiscal burden imposed upon other institutions, but no narrow definition of religion can be accepted on this account. There can be no acceptable discrimination between institutions which take their character from religions which the majority of the community recognizes as religions and institutions that take their character from religions which lack that general recognition. The statutory syncretism which a Parliament adopts in enacting a provision favouring religious institutions is not to be eroded by confining unduly the denotation of the term religion and its derivatives.
These considerations, tending against the adoption of a narrow definition, may suggest the rejection of any definition which would exclude from the category of religion the beliefs, practices and observances of any group who assert their beliefs, practices and observances to be religious. But such an assertion cannot be adopted as a legal criterion. The mantle of immunity would soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion: cf. United States v. Kuch(42). A more objective criterion is required.
That criterion must be found in the indicia exhibited by acknowledged religions, so that any set of beliefs, practices and observances which are accepted by a group of adherents and which exhibit that criterion will be held to be a religion. But what is the range of acknowledged religions from which the criterion is to be derived? The literature of comparative religion, modern means of [*133] communication and the diverse ethnic and cultural components of contemporary Australian society require that the search for religious indicia should not be confined to the Judaic group of religions — Judaism, Christianity, Islam — for the tenets of other acknowledged religions, including those which are not monotheistic or even theistic, are elements in the contemporary atmosphere of ideas. But the task of surveying the whole range of Judaic and other acknowledged religions is daunting, as Professor Arnold Toynbee found:
“If we set out to make a survey of the religions that have been practised at different times and places by the numerous human societies and communities of whom we have some knowledge, our first impression will be one of a bewilderingly infinite variety:”
An Historian’s Approach to Religion, 2nd ed. (1979), p. 16. And Sir James Frazer, in a passage in his The Golden Bough (abr. ed. (1954), p. 50) cited by Young C.J. in the present case, confirms the opinion of Latham C.J.:
“There is probably no subject in the world about which opinions differ so much as the nature of religion, and to frame a definition of it which would satisfy everyone must obviously be impossible.”
In the study of comparative religion, various analyses have been attempted, and none appears to have exhausted the rich diversity of the available data: see Sharpe, Comparative Religion (1975). The derivation of all the common indicia of religions is thus a task which a court cannot hope to perform by a detailed analysis of all acknowledged religions. Indeed, courts are not equipped to make such a study, and the acculturation of a judge in one religious environment would impede his understanding of others. But so broad a study is not required. The relevant inquiry is to ascertain what is meant by religion as an area of legal freedom or immunity, and that inquiry looks to those essential indicia of religion which attract that freedom or immunity. It is in truth an inquiry into legal policy.
The law seeks to leave man as free as possible in conscience to respond to the abiding and fundamental problems of human existence. In all societies and in all ages man has pondered upon the explanation of the existence of the phenomenological universe, the meaning of his existence and his destiny. An understanding of these problems is furnished in part by the natural and behavioural sciences and by other humanist disciplines. They go far towards explaining the universe and its elements and the relationships between nations, groups and individuals. Many philosophies, however, go beyond the [*134] fields of these disciplines and seek to explain, in terms of a broader reality, the existence of the universe, the meaning of human life, and human destiny. For some, the natural order, known or knowable by use of man’s senses and his natural reason, provides a sufficient and exhaustive solution to these great problems; for others, an adequate solution can be found only in the supernatural order, in which man may believe as a matter of faith, but which he cannot know by his senses and the reality of which he cannot demonstrate to others who do not share his faith. He may believe that his faith has been revealed or confirmed by supernatural authority or his reason alone may lead him to postulate the tenets of his faith. Faith in the supernatural, transcending reasoning about the natural order, is the stuff of religious belief. Judge Augustus N. Hand said, obiter, in United States v. Kauten(43):
“… the content of the term [religion] is found in the history of the human race and is incapable of compression into a few words. Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellow-men and to his universe — a sense common to men in the most primitive and in the most highly civilized societies. It accepts the aid of logic but refuses to be limited by it.”
Under our law, the State has no prophetic role in relation to religious belief; the State can neither declare supernatural truth nor determine the paths through which the human mind must search in a quest for supernatural truth. The courts are constrained to accord freedom to faith in the supernatural, for there are no means of finding upon evidence whether a postulated tenet of supernatural truth is erroneous or whether a supernatural revelation of truth has been made. We would respectfully adopt what Douglas J. said in United States v. Ballard(44) in reference to the freedom of religious belief:
“It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.”
Religious belief is more than a cosmology; it is a belief in a supernatural Being, Thing or Principle. But religious belief is not by [*135] itself a religion. Religion is also concerned, at least to some extent, with a relationship between man and the supernatural order and with supernatural influence upon his life and conduct. Clifford Geertz, writing an Anthropological Study of Religion in the International Encyclopedia of the Social Sciences, vol. 13 (1968), p. 406 concluded that:
“Whatever else religion does, it relates a view of the ultimate nature of reality to a set of ideas of how man is well advised, even obligated, to live.”
Thus religion encompasses conduct, no less than belief. Professor Max Mueller, an early scholar in comparative religion, wrote (Natural Religion (Collected Works I (1899), p. 169) cited by Sharpe, op. cit., p. 39):
“When … men began to feel constrained to do what they do not like to do, or to abstain from what they would like to do, for the sake of some unknown powers which they have discovered behind the storm or the sky or the sun or the moon, then we are at last on religious ground.”
What man feels constrained to do or to abstain from doing because of his faith in the supernatural is prima facie within the area of legal immunity, for his freedom to believe would be impaired by restriction upon conduct in which he engages in giving effect to that belief. The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterized as religious.
The canons of conduct which are part of a religion reflect that religion’s set of beliefs, and thus a theistic religion typically includes the acceptance of a duty of ritual observance, as well as ethical practice. In Jehovah’s Witnesses Inc.(45), McTiernan J. said that the “word religion extends to faith and worship, to the teaching and propagation of religion, and to the practices and observances of religion”. Conduct which consists in worship, teaching, propagation, practices or observances may be held to be religious, however, only if the motivation for engaging in the conduct is religious. That is, if the person who engages in the conduct does so in giving effect to his particular faith in the supernatural.
But the area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act [*136] in accordance with one’s religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them: cf. Cantwell v. Connecticut(46). Religious conviction is not a solvent of legal obligation. Thus, in Jehovah’s Witnesses Inc. a prohibition against subversion of the war effort was not circumvented by the pacifist ideals of the Jehovah’s Witnesses, and this Court rejected their challenge to the validity of the National Security (Subversive Associations) Regulations, even though s. 116 protects both freedom of religious opinion and the free exercise of religion. In the United States, where similar constitutional guarantees are to be found in the First Amendment, the free exercise clause was held not to exempt the Mormons from the law forbidding polygamy, though they deemed it to be a religious duty, circumstances permitting, to practice polygamy. In Reynolds v. United States(47), the Supreme Court held that to excuse polygamy on religious grounds would “make the professed doctrines of religious belief superior to the law of the land, and in effect … permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion.
We would therefore hold that, for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual’s or a group’s freedom to profess and exercise the religion of his, or their, choice. [*137]
The test propounded by Adams J. in Malnak v. Yogi(48) is wider and the test propounded by Dillon J. in South Place Ethical Society(49) is narrower than the test which, in our opinion, is the correct test. Malnak v. Yogi followed upon a line of cases relating to exemption from compulsory military service of persons claiming to be conscientious objectors “by reason of religious training and belief”. In those cases the Supreme Court of the United States had been faced with the problem of distinguishing between conscientious objections founded on religious grounds and conscientious objections founded on non-religious grounds — a problem which does not arise in Australia: see Reg. v. District Court; Ex parte White(50). The Supreme Court held that “religious” in this context described an opposition to military service stemming from moral, ethical or religious beliefs about what is right or wrong when the beliefs are held with the strength of traditional religious conviction: Welsh v. United States(51); United States v. Seeger(52); and see, under an earlier statute, the judgment of the Second Circuit Court of Appeals in United States v. Kauten(53). In Seeger the Supreme Court quoted from the writings of theologian Dr. Paul Tillich in the context of an examination of the place which a system of beliefs occupied in the life of an objector. The Court said (54):
“We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers. We are reminded once more of Dr. Tillich’s thoughts: ‘And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, of your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God … .’ Tillich, The Shaking of the Foundations 57 (1948). (Emphasis supplied by the U.S. Supreme Court.)”
The views of the majority of the Supreme Court have been subjected to criticism both judicial and academic, (see, e.g., Harlan J. in Welsh(55); “Toward a Constitutional Definition of Religion”, Harvard Law Review, vol. 91 (1978) 1056, at p. 1065, n. 60), but that controversy need not detain us. What is significant for present purposes is that, although the Supreme Court had [*138] resolved the question before it “solely in relation to the language of § 6(j) [of the Universal Military Training and Service Act] and not otherwise” (Seeger(56)), Judge Adams gave the opinions of the Supreme Court a wider currency. He said (57):
“As a matter of logic and language, if the Court is willing to read ‘religious belief’ so as to comprehend beliefs based upon pantheistic and ethical views, it might be presumed to favour a similar inclusive definition of ‘religion’ as that term appears in the first amendment.”
An earlier decision of the Supreme Court in Torcaso v. Watkins(58) also led Judge Adams to a broader definition of religion. There the court had held that neither a State nor the federal Government could “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs” and added, in a footnote (59):
“Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”
The Supreme Court had thus appeared to place within the concept of religion not only non-theistic religions but also systems of belief which had no supernatural element. That observation, together with the opinions in Seeger and Welsh, led Judge Adams in Malnak v. Yogi to think that a new definition of religion, though not yet fully formed, could be described as a “definition by analogy”. His Honour said (60):
“The modern approach thus looks to the familiar religions as models in order to ascertain, by comparison, whether the new set of ideas or beliefs is confronting the same concerns, or serving the same purposes, as unquestioned and accepted ‘religions’.”
Judge Adams expressed the view that there are “three useful indicia that are basic to our traditional religions and that are themselves related to the values that undergird the first amendment”(61). The first of his indicia was the “ultimate” nature of the ideas presented. The term “ultimate” seems to be derived from the writings of Dr. Tillich. Judge Adams said (62):
“Expectation that religious ideas should address fundamental [*139] questions is in some ways comparable to the reasoning of the Protestant theologian Dr. Paul Tillich, who expressed his view on the essence of religion in the phrase ‘ultimate concern’. Tillich perceived religion as intimately connected to concepts that are of the greatest depth and utmost importance.”
This approach, however, focuses attention upon the nature of the questions which the set of ideas seeks to answer and diverts attention from the nature of the answers propounded. It furnishes a criterion which looks only to what we described above as the abiding and fundamental problems of human existence. Judge Adams clearly identifies the nature of the questions which, if they are addressed by a set of beliefs, indicate the religious character of those beliefs. His Honour said (63):
“One’s views, be they orthodox or novel, on the deeper and more imponderable questions — the meaning of life and death, man’s role in the Universe, the proper moral code of right and wrong — are those likely to be the most ‘intensely personal’ and important to the believer. They are his ultimate concerns. As such, they are to be carefully guarded from governmental interference … ”
To attribute a religious character to one’s views by reference to the questions which those views address rather than by reference to the answers which they propound is to expand the concept of religion beyond its true domain. As the decision in Welsh illustrates, such an approach sweeps into the category of religious beliefs philosophies that reject the label of a religion and that deny or are silent as to the existence of any supernatural Being, Thing or Principle.
The other two indicia stated by Judge Adams may be briefly mentioned. The second of the indicia is the comprehensiveness of the set of ideas. No doubt a set of religious ideas will frequently be comprehensive, but we would not deny the character of a religion to a set of beliefs and practices which would otherwise qualify merely because its tenets aver or admit that knowledge of the supernatural is partial or otherwise imperfect or because its tenets offer no solution to some of the abiding and fundamental problems of man’s existence. The third of the indicia is the existence of “any formal, external, or surface signs that may be analogized to accepted religions”, such as formal services, a clergy or festivities. No doubt rituals are relevant factors when they are observed in order to give effect to the beliefs in the supernatural held by the adherents of the supposed religion. Thus ceremonies of worship are central to the Judaic religions manifesting their belief in and dependence on God. [*140] Mere ritual, however, devoid of religious motivation, would be a charade.
We are thus unable to accept the corporation’s submission that this Court should apply the indicia which found favour with Judge Adams in Malnak v. Yogi(64). The second and third indicia are not the criteria of a religion, though they may frequently be found in a religion. On the other hand, we are equally unable to accept the narrower tests which have been propounded in England. In South Place Ethical Society(65) Dillon J. said:
“It seems to me that two of the essential attributes of religion are faith and worship; faith in a god and worship of that god. This is supported by the definitions of religion given in the Oxford English Dictionary (1914), although I appreciate that there are other definitions in other dictionaries and books. The Oxford English Dictionary gives as one of the definitions of religion: ‘A particular system of faith and worship.’ Then: ‘Recognition on the part of man of some higher unseen power as having control of his destiny, and as being entitled to obedience, reverence, and worship.’”
This test limits religion to theistic religions. A similar test had been applied by the Court of Appeal in Reg. v. Registrar General; Ex parte Segerdal(66), where it was held that a chapel of the Church of Scientology was not a place of meeting for religious worship. In that case, however, the statutory reference to worship suggested that Parliament had in mind a theistic religion. To restrict the definition of religion to theistic religions is to exclude Theravada Buddhism, an acknowledged religion, and perhaps other acknowledged religions. It is too narrow a test. We would hold the test of religious belief to be satisfied by belief in supernatural Things or Principles and not to be limited to belief in God or in a supernatural Being otherwise described.
We turn next to the beliefs, practices and observances the character of which is to be determined. The findings of the learned trial judge furnish some but not all of the relevant material. Crockett J. examined the history of the Scientology organization. He found that its predecessor in Australia was the Hubbard Association of Scientologists International (“H.A.S.I.”), and that that Association had published, at some time not earlier than 1961, a magazine which unequivocally asserted “H.A.S.I. is non-religious — it does not demand any belief or faith nor is it in conflict with faith. People of all faiths use Scientology.” His Honour investigated the subsequent history of the development of the cult, and found [*141] that a considerable transformation had ostensibly occurred. But his Honour thought that “the ecclesiastical appearance now assumed by the organization is no more than colourable in order to serve an ulterior purpose”, namely, the purpose of acquiring the legal status of a religion so that the organization might have the fiscal and other benefits of that status in Australia and elsewhere and the purpose of avoiding the legal disabilities to which the organization was subject by reason of the Psychological Practices Act 1965 (Vict.). His Honour expressed his clear conviction that the purported transformation of Scientology to a religion was no more than a sham, the proclaimed belief in the efficacy of prayer was bogus, and the adoption of the paraphernalia and ceremonies of conventional religion was a mockery. He said (67):
“The very adroitness — and alacrity — with which the tenets or structure were from time [to time] so cynically adapted to meet a deficiency thought to operate in detraction of the claim to classification as a religion serve to rob the movement of that sincerity and integrity that must be cardinal features of any religious faith.”
Though his Honour found that at least some parts of Mr. Hubbard’s writing contained merely pretended doctrines and practices of Scientology, his Honour found also that members of the Scientology movement are expected to and, apostates excepted, do accord blind reverence to the written works of Mr. Hubbard. Although the sincerity and integrity of the ordinary members of the Scientology movement were not in doubt, his Honour held that Scientology was “no less a sham because there are others prepared to accept and act upon such aims and beliefs as though they were credible when they can not see them for what they are. Gullibility cannot convert something from what it is to something which it is not”(68).
Yet charlatanism is a necessary price of religious freedom, and if a self-proclaimed teacher persuades others to believe in a religion which he propounds, lack of sincerity or integrity on his part is not incompatible with the religious character of the beliefs, practices and observances accepted by his followers. If his Honour had approached the matter from the standpoint of the general group of adherents, he may well have found Scientology to be a religion, for he said (69):
“Quite possibly if I were to accept as genuine the principles, beliefs and practices supposedly now subscribed to by the scientology organisation, then I, too, might agree readily enough that its institution was religious in character.” [*142]
No attack was made upon the sincerity or integrity of the witnesses who stated what the general group of adherents believed and accepted. The question to which the evidence was directed was not whether the beliefs, practices and observances of the persons in ultimate command of the organization constituted a religion but whether those of the general group of adherents constituted a religion. The question which the parties resolved to litigate must be taken to be whether the beliefs, practices and observances which the general group of adherents accept is a religion.
Upon the hypothesis that that is the question to be determined, the findings which Crockett J. made fall short of the findings required to satisfy each of the relevant elements of a religion according to the principles earlier stated. That is not surprising. There were no pleadings, and the facts to be found necessarily depended upon whatever definition of religion was adopted. The court had to determine both the ambit of the legal concept of religion and whether the subject beliefs, practices and observances fell within that ambit. Defining the issues for determination differently from the issues as we have stated them, the Supreme Court did not need to ascertain some of the facts which now appear relevant. Either further facts must now be found or the matter must be remitted to the Supreme Court.
There is neither a conflict in evidence nor a question of credibility which requires the matter to be remitted to the Supreme Court. However, the finding or further facts by this Court is rendered difficult by the absence of evidence to explain (if explanation be possible) those obscure parts in the library of books in which, it is said, the beliefs, practices and observances of the general group of adherents can be found. If any inability to ascertain whether the indicia of a religion are present arises because of the obscurity of the writing or the lack of evidence to explain it, the corporation must bear the consequences. It bears the onus of establishing its entitlement to the exemption specified in s. 10(b).
Crockett J. made some findings as to the beliefs now expounded in Mr. Hubbard’s writings and accepted by his followers (70):
“According to the teachings of Mr. Hubbard the existence of a Supreme Being is to be affirmed and life is to be looked at in the terms of eight dynamics. The first is self and the eighth is the Supreme Being. The person himself is not his body but a thetan — equivalent one might say to a soul or spirit. Man’s immortality exists in the power of the thetan to undergo infinite reincarnations. … However, despite an occasional reference in Mr. Hubbard’s books to a ‘Supreme Being’, or ‘Divine Being’ or [*143] God and the placement of the eighth dynamic at the pinnacle of man’s awareness of the other dynamics, it does seem apparent, as Winn L.J. observed in Segerdal’s Case(71) that the doctrines of scientology are more concerned with ‘the transmigration and education … of Thetans than they are with God in any shape or form, or any concept of a divine, superhuman, all powerful and controlling entity’.&3148;
We do not understand that the belief in the thetan or its capacity for infinite reincarnation is consequential upon or bears any relationship to a belief in a Supreme Being. Indeed, Mrs. Allen, the senior spokesman for the Church of Scientology in Victoria, said during her cross-examination that there was nothing religious in Mr. Hubbard’s discovery of the thetan in 1951 by the use of scientific methods, but she thought that once man is discovered to be a spiritual being the discovery “can only become religious in its further research”. Belief in a Supreme Being is now a part of Scientology, but there is no tenet of Scientology which expresses a particular concept of a Supreme Being. The name of the Supreme Being is left as a matter of individual choice. Each adherent must make up his own mind what his God is. It may be doubted whether a declaration that a Supreme Being exists is, without more, a mark of a theistic religion. But there is no doubt that a belief in the transmigration or infinite reincarnation of thetans is a belief in a supernatural principle. That belief does not require a concomitant belief in a Supreme Being before it qualifies as a religious belief. It is akin to the beliefs of Buddhism from which a large part of Mr. Hubbard’s ideas are said to be derived. The beliefs which, on Crockett J.’s finding, are accepted by members of the cult, satisfy the first criterion of a religion. But the second criterion is more troublesome. To satisfy the second criterion, the facts must show the acceptance of canons of conduct in order to give effect to a supernatural belief, not being canons of conduct which offend against the ordinary laws.
Finding Scientology’s appearance of religion to be a sham, Crockett J. did not need to examine the relationship between the rituals and other canons of conduct propounded by Mr. Hubbard and accepted by his followers on the one hand, and the supernatural beliefs entertained by those followers on the other. However, a book entitled The Scientology Religion was tendered and it contains chapters headed “Practices” and “Codes of Conduct: Ethics and Right Conduct”. It is appropriate to search there for the relevant canons of conduct and their connexion, if any, with belief in the supernatural. Several factors are referred to, the first of which is [*144] ethics. Ethics is said to be “a rational system adopted by members of the Church, containing rules of conduct intended to promote the obtaining of spiritual betterment”. The content of the ethical system is stated in this way (p. 44):
“‘Ethics is reason and the contemplation of optimum survival’, and any ethical decision or calculation considered ‘right action’ would at the same time enhance survival for the maximum area of life (i.e. with regard to the eight dynamic principles), expanding and yet refining the doctrine of ‘the greatest good for the greatest number’ to include all dynamics of existence.”
According to Mr. Hubbard, the “Eight Dynamics” are urges or motivations, the last of which is called the Infinity or God Dynamic. His definition of the eighth Dynamic is set out in Scientology — The Fundamentals of Thought, p. 38:
“… the urge toward existence as Infinity. This is also identified as the Supreme Being. It is carefully observed here that the science of Scientology does not intrude into the Dynamic of the Supreme Being. This is called the Eighth Dynamic because the symbol of infinity stood upright makes the numeral ‘8’.”
Mrs. Allen, the corporation’s principal witness, explained her belief in relation to the eighth Dynamic in these terms:
“… as the thetan becomes more aware, particularly of the dynamics there is an urge to survive over all those areas and the urge to survive on that particular dynamic is to become aware — to aid the survival of and to be part of the survival of your Supreme Being, however you name that Supreme Being.”
Failing to understand the meaning of the passages cited from Mr. Hubbard’s writing, we are unable there to find a connexion between Scientology ethics and Scientology belief; but Mrs. Allen seems, however obscurely, to be pointing to some exercise of the will connected with a belief in the survival of a thetan in association with a Supreme Being.
The second factor to which The Scientology Religion refers is the codes of conduct of which it is said (pp. 44-45):
“Like the Buddhist system, the Church of Scientology has prescriptive moral codes intended for adherents; one is a Code of pastoral practice, the Auditor’s Code; another is the Code of a Scientologist. The Code of a Scientologist is established to provide a covenant of right conduct for adherents of the Church with regard to matters involving the Church itself.
The Auditor’s Code imposes definite regulations and ethical standards to be abided by in the counselling situation at all times.
A further Code, the Code of Honour has been written for each and every person to follow as he chooses.”
The various codes of conduct are set out in [*145] The Creation of Human Ability — A Handbook for Scientologists, pp. 1-8. Auditing is an important aspect of Scientology practice. In The Scientology Religion it is stated (p. 37) to be:
“the Scientology Pastoral Councelling [sic] procedure by which an individual is helped, in stages, to recover his self-determinism, ability and awareness of self as an immortal being. It is done during a precise period of time called a ‘session’, in which an AUDITOR (literally ‘one who listens’) a trained Scientology minister-counsellor, uses inter-personal communication and carefully devised questions and drills which enable the person audited, called the PRECLEAR, to discover and thereby remove his self-imposed spiritual limitations.”
Auditing appears to be the principal means of fulfilling the stated aim of Scientology (p. 22):
“… it is to help the individual become aware of himself as an immortal Being and to help him achieve and attain the basic truths with regard to himself, his relationship to others and all Life, his relationship to the physical universe and the Supreme Being. Further, we want to erase his sin so that he can be good enough to recognise God.”
If auditing is an exercise in which the auditor and preclear engage in order to give effect to a belief in thetans or in the Supreme Being, it may be a religious exercise, and the “Auditor’s Code” may thereby take on a religious character. But on its face, “The Auditor’s Code” seems to be no more than pragmatic advice: for example, “Keep all appointments once made”; “Do not process a preclear after 10.00 p.m.” Or an instruction as to the conduct of auditing: for example, “Never permit the preclear to end the session on his own independent decision” or “Always continue a process as long as it produces change, and no longer.”
Some of the canons in “The Code of a Scientologist” are clearly worldly advice: for example, “To discourage the abuse of Scientology in the press” or “To prevent the use of Scientology in advertisements of other products”. The seventh canon may be related to the general teachings of Scientology for it says: “To employ Scientology to the greatest good of the greatest number of dynamics”. Its meaning is impenetrably obscure.
“The Code of Honour” appears to contain some moral admonitions: for example, “Never desert a comrade in need, in danger or in trouble” or “Never fear to hurt another in a just cause.” And it is possible that two of the canons of this code are related to a belief in the thetan: “Your self-determinism and your honour are more important than your immediate life” and “Your integrity to yourself is more important than your body.” However, we can perceive no relevant connexion between any canon of the codes of conduct and [*146] Scientologists’ belief in the supernatural, unless auditing is itself a religious exercise satisfying the second indicium.
The third factor to which reference is made in The Scientology Religion (p. 46) is “the Scientology confessional”, a part of auditing, which enables an individual to reveal his transgressions against “his own moral codes in terms of the Eight Dynamics, and the mores of his society”. If the practice provides a means for an individual to “regain spiritual integrity and composure”, as Mr. Hubbard claims, it is not stated to be for any reason related to the set of supernatural beliefs accepted by Scientologists.
Other factors to be considered are the rites and ceremonies — weddings, namings and funerals. Their existence is accounted for in this way: “Scientology has followed all other religions in developing rites and ceremonies” (The Scientology Religion, p. 40). Mr. Hubbard has written formularies for these ceremonies which contain allusions to the notion of the immortal thetan and the eight Dynamics. They are set out in a book Ceremonies of the Founding Church of Scientology. That book opens with the statement: “In a Scientology Church Service we do not use prayers, attitudes of piety, or threats of damnation”, but Mrs. Allen asserts that a prayer for total freedom is said.
If we do not mistake what Mr. Hubbard has written, he does not specify a connexion between a supernatural belief (as to thetans or a Supreme Being) and the ethical rules or the codes or the practice of confession or the organization’s ceremonies. One may readily appreciate how Crockett J. was led to the view which he expressed, for the writings of Mr. Hubbard give to the practices and observances of Scientology the appearance of a farrago of imitations of established religions without the characteristic unity between a particular religion’s practices and observances and that religion’s set of beliefs in the supernatural. It may be that Mr. Hubbard intends the practices and ceremonies to derive their significance from the practice of auditing and the question whether auditing is a religious practice thus assumes a central importance. Is auditing engaged in in order to give effect to a supernatural belief and, if so, is it lawful according to laws which do not discriminate against Scientology or against religion generally?
The service of auditing is rendered for a fee. It is usually sold “in a block of 12 1/2 hours” for a fee of $650. The selling price of this and sixty-six other counselling services are displayed in a “Services Price List” which comes from the management echelon of the Scientology organization in America. A person who introduces a buyer for a service is paid a commission of 15% after the service is taken. An [*147] instruction to students of auditing includes this advice (The Creation of Human Ability, pp. xi, xii):
“That the only scarcity of preclears which will occur is through his own indigence, and his procurement of preclears or groups does not depend upon the industry of other auditors but of himself.”
To become a minister in the Church, further training services are required. Unless the trainee is a staff member, he is charged a fee (which is not less than $630) for the service. The fees for auditing and training are the principal sources of the Church’s income. Sufficient appears in the evidence to have given rise to a real question as to whether Mr. Hubbard or the Church organization intends that auditing be practised for religious or for commercial motives or for a mixture of both motives. If the case had been fought on the issue whether the corporation’s purpose and activities were religious, the question of motivation may have emerged more clearly. The principal object of the corporation is stated in its constitution document to be the promotion of Scientology, and if auditing be the chief means of promotion, the motivation of the corporation in promoting auditing would have borne examination.
In the Full Court, Young C.J. was led away from this inquiry by holding that, as the corporation’s principal object is the promotion of Scientology, the principal question in the appeal became: is Scientology a religion? But promotion of a religion is not necessarily undertaken in discharge of a religious duty or to fulfil some religious precept. Promotion of religion is not always the preserve of the religious and it may be motivated by pursuit of pecuniary or other venal advantage quite unconnected with and unmotivated by any belief in the supernatural. A commercial institution which derives its income from the sale of religious objects, the sale of religious services or the organization of church finances can hardly be described as a religious institution merely because its commercial activities incidentally conduce to the advancement of religion.
However, the motivation of the corporation in promoting auditing and the other aspects of Scientology has not been litigated, and it is material to determine whether the general group of adherents engage in auditing in order to give effect to their supernatural beliefs. Mrs. Allen’s evidence is that auditing is used to help a person shed the things that are stopping him from being as happy and as good as he wishes to be, and that the preclear is “handled” as a spiritual being.
The seeming vagueness of the supernatural beliefs and the obscurity of their expression renders difficult the perception of any connexion between those beliefs and the practices and observances [*148] followed by the general group of adherents. Yet, as Crockett J. found, adherents, who number between 5,000 and 6,000 people in Victoria, accord blind reverence to what Mr. Hubbard has written and it may therefore be inferred that they perceive some unifying thread which makes the whole intelligible, or which assembles sufficient of a jigsaw to allow them to see themselves and what they do as part of a supernatural reality. We think an inference should be drawn — though the material to support it is not compelling — that the general group of adherents practice auditing and accept the other practices and observances of Scientology because, in doing what Mr. Hubbard bids or advises them to do, they perceive themselves to be giving effect to their supernatural beliefs. The commercial motivation to follow Mr. Hubbard’s advice is clear, but the evidence does not permit the conclusion that a desire to give effect to supernatural beliefs is not a substantial motive for accepting the practices and observances contained in his writings.
The Commissioner did not seek to show that auditing is unlawful according to the ordinary law. There was no attempt made to prove that auditing involved a contravention of the ordinary law save for a suggestion, which Mrs. Allen rebutted, that false representations had been made as to the physical cures worked by auditing. Brooking J., in the Full Court, held that the Psychological Practices Act prohibited the beliefs, practices and observances of Scientology from being taught, but that Act (since repealed) discriminated expressly against Scientology. However, the Commissioner did not rely, either here or in the Supreme Court, upon a contravention of the Psychological Practices Act.
It follows that, whatever be the intentions of Mr. Hubbard and whatever be the motivation of the corporation, the state of the evidence in this case requires a finding that the general group of adherents have a religion. The question whether their beliefs, practices and observances are a religion must, in the state of that evidence, be answered affirmatively. That answer, according to the conventional basis adopted by the parties in fighting the case, must lead to a judgment for the corporation.
Our reasons for departing from the conclusions reached by Crockett J. and by the Full Court sufficiently appear in what we have already written. The length of this judgment precludes an analysis of each of the judgments in the Supreme Court, but we would acknowledge the considerable assistance which we have derived from the anxious consideration which each of their Honours gave to the difficulties inherent in the case.
We would grant special leave to appeal, allow the appeal and, pursuant to s. 33C of the Pay-roll Tax Act, reduce the assessment to [*149] pay-roll tax to nil. The corporation is entitled to its costs here and in the Supreme Court.
This appeal turns on whether the Church of the New Faith, which was conceded to be an institution, is a “religious institution” and thus exempt from pay-roll taxation under the Pay-roll Tax Act 1971 (Vict.) s. 10(b).
In Australia there are a great number of tax exemptions and other privileges for religious institutions. Under numerous federal and State Acts, Regulations and Ordinances they are exempted from taxes imposed on the public generally. Examples are stamp duty, pay-roll tax, sales tax, local government rates, and the taxes on motor vehicle registration, hire purchase, insurance premiums, purchase and sale of marketable securities and financial transactions. Ministers of religion are exempted from military conscription. There are also special censorship and blasphemy laws against those who deride or attack religious beliefs, particularly those of the Christian religions. There are many other State and federal laws which directly or indirectly subsidize or support religion.
Because religious status confers such financial and other advantages, the emergence of new religions is bound to be regarded with scepticism.
Scepticism and Religion. Organized religion has always had sceptics, unbelievers, and outright opponents. Voltaire stated “Nothing can be more contrary to religion and the clergy than reason and common sense”: Philosophical Dictionary (1764). Jefferson declared “History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government”: The Writings of Thomas Jefferson, vol. 6 (Washington ed. (1857), p. 267. Bakunin expressed opposition most strongly:
“All religions, with their gods, their demigods, and their prophets, their messiahs and their saints, were created by the credulous fancy of men who had not attained the full development and full possession of their faculties: God and the State (1910), p. 12.”
Scepticism has been strong in Australia since European settlement. This has been attributed primarily to two causes. The progress of science displaced many European religious beliefs. Second, the conditions of settlement and the harsh environment encouraged a philosophy of life based on pragmatic individualism and mutual aid rather than adherence to the abstract dogma, indoctrination and rituals of the organized European religions. [*150]
Last century Marcus Clarke described religion as “an active and general delusion”: Civilization Without Delusion (1880), p. 12. Henry Lawson, Joseph Furphy, Manning Clark, Patrick White, A. B. Facey and many other Australians have written sceptically about organized religion.
Religious Freedom. Religious freedom is a fundamental theme of our society. That freedom has been asserted by men and women throughout history by resisting the attempts of government, through its legislative, executive or judicial branches, to define or impose beliefs or practices of religion. Whenever the legislature prescribes what religion is, or permits or requires the executive or the judiciary to determine what religion is, this poses a threat to religious freedom. Religious discrimination by officials or by courts is unacceptable in a free society. The truth or falsity of religions is not the business of officials or the courts. If each purported religion had to show that its doctrines were true, then all might fail. Administrators and judges must resist the temptation to hold that groups or institutions are not religious because claimed religious beliefs or practices seem absurd, fraudulent, evil or novel; or because the group or institution is new, the number of adherents small, the leaders hypocrites, or because they seek to obtain the financial and other privileges which come with religious status. In the eyes of the law, religions are equal. There is no religious club with a monopoly of State privileges for its members. The policy of the law is “one in, all in”.
I have previously expressed the view that it is not within the judicial sphere to determine matters of religious doctrine and practice: Attorney-General (N.S.W.) v. Grant(72) and Attorney-General (Q.); Ex rel. Nye v. Cathedral Church of Brisbane(73). The United States Supreme Court said “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect”: Watson v. Jones(74).
The onus is on each applicant for tax exemption to prove, on the civil standard, that it is entitled to the exemption — that it is, more likely than not, a religious institution. Because so many different beliefs or practices have been generally accepted as religious, any attempt to define religion exhaustively runs into difficulty. There is no single acceptable criterion, no essence of religion. As Latham C.J. said:
“… it is not an exaggeration to say that each person chooses [*151] the content of his own religion. It is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character: Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth(75).”
The better approach is to state what is sufficient, even if not necessary, to bring a body which claims to be religious within the category. Some claims to be religious are not serious but merely a hoax (United States v. Kuch(76)), but to reach this conclusion requires an extreme case. On this approach, any body which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious. Any body which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, such as the sun or the stars, or a physical invisible God or spirit, or an abstract God or entity, is religious. For example, if a few followers of astrology were to found an institution based on the belief that their destinies were influenced or controlled by the stars, and that astrologers can, by reading the stars, divine these destinies, and if it claimed to be religious, it would be a religious institution. Any body which claims to be religious, and offers a way to find meaning and purpose in life, is religious. The Aboriginal religion of Australia and of other countries must be included. The list is not exhaustive; the categories of religion are not closed.
Origins of Religion. Religion is undoubtedly an ancient phenomenon as is shown by archeological evidence, including cave and escarpment carvings and paintings. The Australian Aboriginal religions are tens of thousands of years old. The Hindu religious texts, the Vedas, are said to date back 6,000 years.
Religion has been explained as a development of magic and the need to rationalize the unknown. Natural events such as thunder, volcanic eruptions and floods, were viewed as the anger of a supernatural being or beings. Death, dreams and visions were also explained as involving divine and mysterious powers. Natural objects — the sun, moon, stars, mountains, volcanoes and trees were worshipped. It was easy for some people to delude others about their knowledge of these supernatural powers. Witchdoctors and priests claimed to have the ear of the gods. Consistent with the idea that the gods had human attributes and desired admiration and gifts, priests made idols of human shape. These were served by the witchdoctors or priests who gained great social power. As people became sceptical of the divinity of idols, invisible gods were [*152] invented. Tribal history and myths, ceremonies, rituals, sacred objects and writings, and compulsory or discretionary rules about behaviour, health and diet, were built into an elaborate structure of belief. The religion so created often buttressed or became consolidated with the civil power as with the Pontifex Maximus, the Pharoahs, the Aztecs, and many existing religions.
Another school views religion as the representation of a society’s communal or collective consciousness and emphasizes the relationship between religious orientation and social structures.
Others have seen the origin of religion in deep-seated psychological impulses such as archetypes from the “Collective Unconscious”. Jung explained that many religious dogmas, ceremonies and symbols were irrational because, like dreams, they were concerned with integrating the unconscious with the conscious mind, attempting ultimately to bring psychic “wholeness” to the personality. He wrote: “The religious myth is one of man’s greatest and most significant achievements, giving him the security and inner strength not to be crushed by the monstrousness of the universe”: Symbols of Transformation (1956), p. 231.
Church of the New Faith. The applicant Church is an evolution of “Scientology” based on the teachings of Mr. Lafayette Ronald Hubbard who states that he drew inspiration from the Indian Vedas, Buddhism and the Tao-Te-Ching of Lao Tzu: Phoenix Lectures (1968), pp. 1-35. Hubbard began publishing books on Scientology in the early 1950s in the United States. The first Scientology Church was the Church of Scientology of California founded 18 February 1954. Others have since been formed in many countries. Evidence was given that Scientology has some millions of members including about 150,000 in Australia (6,000 in Victoria).
As presented in this case (and these observations about Scientology are limited by what was presented and are necessarily extremely abbreviated) Scientology is based on “Dianetics”. Central to “Dianetics” is the “engram”, described as a “complete recording down to the last accurate detail of every perception present in a moment of partial or full unconsciousness”. These “engrams” are produced from threats or aids to the survival of the organism called “Dynamics”. These eight “Dynamics” are the urge to survival through (1) self (2) sex or children (3) the group (4) all mankind (5) other life forms (6) the physical universe and its components Matter, Energy, Space and Time (7) spirit including “the manifestations or the totality of awareness of awareness units, thetans, demons, ghosts, spirits, goblins and so forth”, (8) a Supreme Being, or “Infinity”.*153
“Engrams” produced from interaction with these “Dynamics” form a “reservoir of data” stored in the “reactive” or “unconscious” mind. Mr. Hubbard states that these “engrams” cause blockages in the personality: “This is the mind which makes a man suppress his hopes, which holds his apathies, which gives him irresolution when he should act, and kills him before he has begun to live.” Through a process of dialogue known as “auditing”, these “engrams” are raised to a conscious level and worked out, till a person becomes a “clear”. As a “clear” a person identifies with his or her spiritual aspect or “soul” — the “thetan”, and breaks free of the constraints and problems of the physical universe of Matter, Energy, Space and Time (“M.E.S.T.”) which cause reincarnation.
Emphasizing such doctrines, the Hubbard Association of Scientologists International (as the organization was known in Australia in the early 1960s), called itself a “precision science” (Testing Magazine (1961), p. 6) or “a form of experimental psychology”: Communication Magazine (1963), p. 5. Since then it has “evolved”. This “evolution” appears outwardly in the traditional trappings or organized European religion — Sunday meetings, ordination of ministers, clerical garb, symbols resembling the crucifix, various other ceremonies and dogmas. Many of the Scientology books in evidence contained the following statement:
“Scientology is a religious philosophy containing pastoral counselling procedures intended to assist an individual to gain greater knowledge of self … The Hubbard Electrometer is a religious artifact used in the Church confessional. It, in itself, does nothing, and is used by Ministers only, to assist parishioners in locating areas of spiritual distress or travail.”
Article One, section 2 and Article Two, section 2 of the appellant’s constitution states:
“that Man’s best evidence of God is the God he finds within himself, that the Author of this universe intended life to thrive within it, and that the Church is formed to espouse such evidence of the Supreme Being and Spirit as may be knowable to Man and that it is the hope of Man that the teachings of the Church will bring a greater tranquility to the State and thus the better order and survival to Man upon this Planet.”
In September 1965 a Victorian Government Board of Inquiry reported that “Scientology is evil; its techniques evil; its practice a serious threat to the community, medically, morally and socially; and its adherents sadly deluded and often mentally ill … In a community which is nominally Christian, Hubbard’s disparagement of religion is blasphemous and a further evil feature of scientology”: Report of the Board of Inquiry into Scientology (1965), pp. 1, 152. This report led to the Psychological Practices Act 1965 (Vict.) which [*154] made the teaching of Scientology an offence: s. 31(1). However that Act did not apply to “anything done by any person who is a priest or minister of a recognized religion in accordance with the usual practice of that religion”: s. 2(3). These provisions were repealed on 29 June 1982: Psychological Practices (Scientology) Act 1982 (Vict.).
The Church was recognized as a religious denomination under s. 26 of the Marriage Act 1961 on 15 February 1973 (Commonwealth of Australia Gazette No. 20) and has been reproclaimed a number of times since, the last being 30 August 1983: Commonwealth of Australia Gazette No. G34. It is granted exemption as a religious institution from pay-roll tax in South Australia, Western Australia, New South Wales and the Australian Capital Territory.
The Supreme Court of Victoria. The Commissioner of Pay-roll Tax having rejected the applicant’s claim for exemption, the Victorian Supreme Court both at first instance (Crockett J.) and on appeal (Young C.J., Kaye and Brooking JJ. decided that the applicant was not a religious institution: Church of the New Faith v. Commissioner for Pay-roll Tax(77). Brooking J. held against the applicant on the basis that it was illegal by reason of the Psychological Practices Act. In the Supreme Court and on this appeal the respondent declined to rely upon that reasoning, and it may be disregarded. The other justices held against the applicant by applying unacceptable criteria.
Belief in God. Crockett J. held that “religion is essentially a dynamic relation between man and a non-human or superhuman being”(78). He found that the doctrines of Scientology were not sufficiently concerned with such “a divine superhuman, all powerful and controlling entity”(79). Kaye J. found absent an “acknowledgment of a particular deity by all members of the Church … members of the Church might hold beliefs in, and have a personal relationship with, a different supernatural being”(80).
Most religions have a god or gods as the object of worship or reverence. However, many of the great religions have no belief in God or a Supreme Being in the sense of a personal deity rather than an abstract principle. Theravadan Buddhism, the Samkhya school of Hinduism and Taoism, are notable examples. Though these religions assert an ultimate principle, reality or power informing the world of matter and energy, this is an abstract conception described as [*155] unknown or incomprehensible. Idols or symbols representing it are contemplated: Woodroffe The Psychology of Hindu Religious Ritual in Sakti and Sakta: Essays and Addresses (1969), p. 303. This meditation (rather than prayer or worship) is said to stimulate an awareness of the divine peculiar to the individual concerned. However in practice many adherents worship these images, representations and symbols as personal deities.
In the United States of America, belief in God or a Supreme Being is no longer regarded as essential to any legal definition of religion: United States v. Kauten(81); United States v. Ballard(82) and Welsh v. United States(83). There, it is now sufficient that a person’s beliefs, sought to be legally characterized as religious, are to him or her of “ultimate concern”: United States v. Seeger(84). Buddhism, Taoism, Ethical Culture and Secular Humanism have been held to be religions: see Torcaso v. Watkins(85); Washington Ethical Society v. District of Columbia(86); Fellowship of Humanity v. County of Alameda(87).
The doctrine of a personal God has been seen by many as an unnecessary part of religious belief. Einstein declared:
“In their struggle for the ethical good, teachers of religion must have the stature to give up the doctrine of a personal God, that is, give up that source of fear and hope which in the past placed such vast power in the hands of priests. In their labours they will have to avail themselves of those forces which are capable of cultivating the Good, the True, and the Beautiful in humanity itself: Science and Religion in The Odyssey Reader (1968), p. 284.”
Similarly Bertrand Russell stated:
“The whole conception of God is a conception derived from the ancient Oriental despotisms. It is a conception quite unworthy of free men. When you hear people in church debasing themselves and saying that they are miserable sinners, and all the rest of it, it seems contemptible and not worthy of self-respecting human beings. We ought to stand up and look the world frankly in the face: Why I am not a Christian (1976), p. 17.”
Julian Huxley wrote: “religion of the highest and fullest character can co-exist with a complete absence of belief in revelation in any [*156] straightforward sense of the word, and of belief in that kernel of revealed religion, a personal god”: Religion Without Revelation (1957), p. 1.
Writings and Beliefs. The works of Scientology were referred to as “obscure”, “tautologous”, “ambiguous”, “often ungrammatical” and “contradictory” by Young C.J. who stated “It is difficult to avoid the conclusion that one of the reasons for writing in this way is that it permits an explanation of the functions or purposes of the organization to be trimmed to whatever advantage is sought or can be obtained”(88).
Most religions have a holy book, sacred songs or stories, holy tablet or scroll containing a set of beliefs or code of conduct, often supposed to have been inspired by, or even given directly to a founder, by a god.
However, because the scriptures or writings of most religions are about the supernatural, mysteries and psychic events, as well as often obsolescent theories about nature, they are frequently contradictory. Thomas Paine exposed the numerous contradictions in the Christian Bible: The Age of Reason — Being An Investigation of True and Fabulous Theology (1938). Ambiguities, obscurities and contradictions are found in the holy books of many other religions. Religious language is frequently deliberately obscure and symbolic so as to hide mysteries from the uninitiated and communicate effectively with the unconscious mind. The oracle at Delphi was famous for prophecies so obscure that they could later be interpreted as having predicted whatever occurred. In any event, much writing is “obscure”, “tautologous”, “ambiguous”, “often ungrammatical” and “contradictory”, especially in philosophy, the social sciences, psychiatry and law.
Young C.J. also held that “the ideas with which scientology deals are more concerned with psychology than with ultimate truth … man’s place in the universe, or with fundamental problems of human existence”(89). The evidence does not sustain this finding. Further, psychology does concern itself with those subjects. Modern psychological studies suggest that levels of awareness or consciousness giving meaning and purpose to life, once regarded as exclusive to religion and shrouded in mystery and superstition, can be achieved by non-religious insights.
Revision of Beliefs. The respondent contended that the fact that in its early writings Scientology claimed to be a science rather than a religion indicates that its subsequent desire to be a religion cannot be [*157] genuine: Young C.J. (90), Kaye J. (91). Crockett J. stated “The very adroitness — and alacrity — with which the tenets or structure were from time to time so cynically adapted to meet a deficiency thought to operate in detraction of the claim to classification as a religion serve to rob the movement of that sincerity and integrity that must be cardinal features of any religious faith” (92).
There are many groups now recognized as religions which when they began claimed not to be. The development of Scientology resembles that of Christian Science. Mary Baker Eddy, the founder, claimed to deal with the development of human personality in a scientific way. Persecution, defections and associated lawsuits threatened to destroy what Mrs. Eddy saw as her contribution to the Welfare of humanity. So she took advantage of the legal privileges extended to religion by obtaining a formal charter for her Church of Christ (Scientist) in 1879: see Ahlstrom, A Religious History of the American People (1972), p. 1022. Many religions alter their beliefs to retain their social standing and acceptability. Most religions are not static but evolve in belief and structure as a result of internal and external pressure. As science has advanced, many religious beliefs have been abandoned or reinterpreted. When followers become sceptical, dogma tends to be reinterpreted as allegory, religious fact as fantasy and religious history as myth.
Code of Conduct. Young C.J. found that Scientology could also not be considered a religion because its doctrines contained “no complete or absolute moral code” (93). Most religions contain a code of principles regulating the spiritual and social activities of their members. Many codes confer sacred status on activities such as eating, sexual intercourse, marriage, birth and burial. Religious codes of conduct are usually so difficult to observe that the followers constantly infringe and must undergo some penance, either spiritual or financial, to placate the god, to overcome their feelings of guilt or to maintain their place within the religion. The idea of a “complete or absolute moral code” is however alien to the classical forms of religions such as Hinduism or Buddhism. In those, men and women do not offend against a set of principles but against themselves — reaping the karmic consequences of their actions. Schumann writes “Buddhism does not know of ‘sin’, i.e. offence against the commandments of … a god. It only distinguishes between wholesome … and unwholesome … deeds — those leading towards liberation and those leading away from it”: Buddhism: An Outline of its Teachings and Schools (1973), p. 52.*158
Growth from Traditional Religions. The superimposition of the “forms” and “ceremonies” of established religions (Young C.J. (94), the “calculated adoption of the paraphernalia, and participation in ceremonies, of conventional religion” were said to be “no more than a mockery or religion”: Crockett J. (95). But throughout history new religions have adopted and adapted the teachings, symbols, rituals and other practices of the traditional religions.
Buddha drew upon the earlier teachings of Hinduism, as did many Greek religious teachers such as Apollonius of Tyana and Pythagoras. Mohammed drew upon Christian teachings and there is evidence in the Dead Sea and the Nag Hammadi Scrolls that the Christian teachings were based on those of the Essenes. Many religions copied from earlier religions the golden rule of respect for others.
Organized christianity took over many of the forms and ceremonies of the pagan fertility rite of Easter (with its connexion to the full moon and the northern spring equinox) and the winter solstice celebration on 25 December under the ancient calendars, the birth day of the solar deity Mithra. Leaders of the Christian church from St. Paul to St. Augustine recognized the similarities between the Christian ceremonies of baptism and the eucharist and the Mysteries of Mithra, Cybele and Attis involving partaking of bread, fish and wine. As Charles Bradlaugh said, “No religion is suddenly rejected by any people; it is rather gradually outgrown … A superseded religion may often be traced in the festivals, ceremonies, and dogmas of the religion which has replaced it”: Humanity’s Gain From Unbelief (1929), pp. 1-2.
Propitiation and Propagation. Young C.J. stated that there were “no elements of propitiation or propagation in any of the ceremonies”(94) of the Church of the New Faith. Blood sacrifices and other forms of propitiation by gift or worship were prominent in older religions. Modern religions however tend to replace actual with notional sacrifice and to replace propitiation or appeasement with concepts such as “making peace with one’s soul”. Absence of propitiation from Scientology only indicates that Scientology is somewhat removed from the primitive religions.
In the older religions propagation occurred in various ways, by natural increase amongst the adherents with which fertility rites were associated, and by conversion of non-believers. Indoctrination or “brainwashing” is typical of many religions. Often this takes place during an intense period of initiation. Adherence and conversion are [*159] also achieved in most religions by regular meetings, ceremonies and rituals. Special ceremonies may be held at times of physiological significance, such as puberty; times critically important for agriculture or natural food sources such as the onset of spring or midsummer; days historically important to the religion such as the founder’s birth or death; or for astrological reasons. Scientology appears to conform to this general pattern of propagation.
Public Acceptance. Young C.J. stated: “I do not think that there has been in Victoria such public acceptance of scientology as a religion as requires the Court to treat it as such (97).” He said that the word “scientology” was not to be found in any “reputable dictionary”(98) but this was an error. The major Australian dictionary, The Macquarie Dictionary (1981), refers to Scientology as an “applied philosophy”, and in the addenda to the Shorter Oxford English Dictionary (1977) it is referred to as “a religious system based on the study of knowledge, and seeking to develop the highest potentialities of its members”. It is also referred to in the standard work the Abingdon Dictionary of Living Religions (1981) as a “religious movement founded in 1952 by L. Ron Hubbard, U.S. Science fiction writer and author of the best-selling book Dianetics (1950), which launched a popular self-enhancement movement out of which Scientology emerged”.
Most religions seek if not to convert the public at least to secure its acceptance of their beliefs. Nearly all religions commence as minority groups, often gathering around the teachings of one seemingly inspired individual. Their rise to public acceptance is normally very slow and difficult.
As the United States Supreme Court stated, a test of public acceptability would create “a danger that a claim’s chances of success would be greater the more familiar or salient the claim’s connexion with conventional religiosity could be made to appear”: Gillette v. United States(99). The proliferation of religions and religious sects would present difficulties for any test based on public acceptability. There are now about 500 distinct groups in Australia: unpublished research of Tillett, Department of Religious Studies, University of Sydney (1982); see also list of recognized denominations under s. 26 of the Marriage Act 1961, Commonwealth of Australia Gazette No. G34, 30 August 1983. [*160]
Claim to be the True Faith. Young C.J. stated (1):
“It seems clearly possible on the evidence to embrace scientology whilst remaining an adherent of a recognized religion such as Roman Catholicism. There is no claim that scientology is the true faith. There is no obligation to accept a body of doctrine which is regarded as essential or even important.”
Scientology may be unusual in not claiming to be the one true faith. However, there have been many religious or quasi-religious groups which proclaim that their adherents may also adhere to other religions such as the Quakers, the Latitudinarians, the Theosophists, the Baha’ is and the Zen Buddhists. Classical Hinduism in theory adopts the proposition “Truth is one; sages call it by different names” and embraces religious groups of widely different belief and structure.
The faith of members of various religions has inspired concern for others which has often been reflected in humanitarian and charitable works. However, the claim to be the one true faith has resulted in great intolerance and persecution. Because of this, the history of many religions includes a ghastly record of persecution and torture of non-believers. Hundreds of millions of people have been slaughtered in the name of god, love and peace. In the effort to uphold “the one true faith” courts have often been instruments for the repression of blasphemers, heretics and witches. Ingersoll claimed that such religious persecution sprung “from a due admixture of love towards God and hatred towards man”: Lectures and Essays (1956), p. 42.
Commercialism. Young C.J. stated (2): “Nothing in the way the ideas of scientology are exploited commercially suggests that it is a religion. Indeed the considerations referred to under this heading might be thought to point clearly to the opposite conclusion.” The commercial operations were: (i) sale of services to members (ii) charges for instruction leading to ordination (iii) financial arrangements with overseas headquarters and (iv) registration as trade names words such as “Scientology” and other steps taken to protect trade marks, trade names, patents and copyright, all owned by the founder, Mr. Hubbard.
Most organized religions have been riddled with commercialism, this being an integral part of the drive by their leaders for social authority and power (in conformity with the “iron law of oligarchy”). The amassing of wealth by organized religions often means that the leaders live richly (sometimes in places) even though many [*161] of the believers live in poverty. Many religions have been notorious for corrupt trafficking in relics, other sacred objects, and religious offices, as well as for condoning “sin” even in advance, for money.
The great organized religions are big businesses. They engage in large scale real estate investment, money-dealing and other commercial ventures. In country after country, religious tax exemption has led to enormous wealth for religious bodies, presenting severe social problems. These often precipitate suppression of the religion or its leadership and expropriation of its wealth (see Larson, Church Wealth and Business Income (1965); Larson and Lowell, The Religious Empire (1976)). In the United States of America, where tax exemptions (but not subsidies) are available, Dr. Blake, former President of the National Council of Churches, stated that in view of their favoured tax position America’s churches “with reasonably prudent management, … ought to be able to control the whole economy of the nation within the predictable future” (Christianity Today, vol. 3, no. 22 (1959), p. 7). Commercialism is so characteristic of organized religion that it is absurd to regard it as disqualifying.
Special Leave. Christianity claims to have begun with a founder and twelve adherents. It had no written constitution, and no permanent meeting place. It borrowed heavily from the teachings of the Jewish religion, but had no complete and absolute moral code. Its founder exhorted people to love one another and taught by example. Outsiders regarded his teachings, especially about the nature of divinity, as ambiguous, obscure and contradictory, as well as blasphemous and illegal. On the criteria used in this case by the Supreme Court of Victoria, early Christianity would not have been considered religious.
On this appeal, the Court was informed that following the Supreme Court’s decision, the Victorian Commissioner of Probate Duties has refused to treat the Seventh Day Adventists as a religious institution. The Seventh Day Adventists are generally accepted as religious. They have been in Australia since 1885, and were “enthusiastic and dedicated proponents of liberty of conscience, and of the strict separation of Church and State” and campaigned vigorously for the introduction of a freedom of religion clause into the Constitution of the Commonwealth (see Richard Ely Unto God and Caesar (1976), p. 27). The approach of the Supreme Court of Victoria, if allowed to prevail, would result in intolerable religious discrimination. The case for granting special leave to appeal is overwhelming. [*162]
Conclusion. The applicant has easily discharged the onus of showing that it is religious. The conclusion that it is a religious institution entitled to the tax exemption is irresistible.
The Commissioner should not be criticized for attempting to minimize the number of tax exempt bodies. The crushing burden of taxation is heavier because of exemptions in favour of religious institutions, many of which have enormous and increasing wealth.
Special leave to appeal should be granted and the appeal allowed. The applicant’s objection to the assessment of payroll tax should be upheld. The Commissioner should pay the applicant’s costs at every level.