The Church of the New Faith v. Commissioner of Pay-roll Tax (Victoria).
Judges: Young CJKaye J
Brooking J
Court:
Supreme Court of Victoria (Full Court)
Kaye J.
I have had the advantage of reading the judgment in draft form of the Chief Justice and I agree for substantially the reasons expressed by him that the appeal should be dismissed. There are, moreover, further matters and different considerations which have also caused me to reach the same conclusion. These are as follows.
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Resolution of the appeal must depend very much upon the proper meaning of the expression ``religious institution'' used in sec. 10 of the Pay-roll Tax Act 1971. In the context in which they appear, the words constituting the expression are unambiguous. To the expression, therefore, the primary rule of construction that words ought to be given their plain and ordinary meaning should be applied.
An institution used in the context found in sec. 10 means an organisation, foundation, society, association or body whose purpose is the performance of particular functions or the promotion of a particular object, or both. A religious institution, it would follow, is a body whose purpose is the fulfilment of certain functions relating to a religion or the advancement of a religion.
The word ``religious'' used in conjunction with institution is, of course, the adjectival form of the noun ``religion''. Religion is concerned with beliefs or feelings of man. The problem arises, however, in distinguishing those from all other beliefs and feelings entertained or held by man. In
Adelaide Company of Jehovah's Witnesses Inc.
v.
The Commonwealth
(1943) 67 C.L.R. 116
at pp. 123-124
Latham
C.J., when considering restrictions on legislative power contained in sec. 116 of the Constitution of the Commonwealth prohibiting the free exercise of any religion, noted the difficulty if not impossibility of formulating a definition of ``religion'' which would satisfy the followers of all religions, both past or present. The Chief Justice referred to the various ways in which adherents regard their own religion and then said:
``The scope of religion has varied very greatly during human history. Probably most Europeans would regard religion as necessarily involving some ideas or doctrines affecting the relation of man to a Supreme Being. But Buddhism, one of the great religions of the world, is considered by many authorities to involve no conception of a God. For example, Professor Gilbert Murray says: `We must always remember that one of the chief religions of the world, Buddhism, has risen to great moral and intellectual heights without using the conception of God at all; in his stead it has Dharma, the Eternal Law.' - Five Stages of Greek Religion ch. 1. On the other hand, almost any matter may become an element in religious belief or religious conduct. The wearing of particular clothes, the eating or the non-eating of meat or other foods, the observance of ceremonies, not only in religious worship, but in the everyday life of the individual - all of these may become part of religion. Once upon a time all the operations of agriculture were controlled by religious precepts. Indeed, it is not an exaggeration to say that each person chooses 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.''
I do not read, however, the passage cited as containing a definitive statement of what are the differentia of religious beliefs from other beliefs. The concluding sentence contains an expression of a salutary caution against determining by use of limited criteria whether particular beliefs constitute religion. Thus, the decision whether particular beliefs and practices are a religion cannot be adjudged by either making a subjective evaluation of the truth of the beliefs, or by comparing the beliefs and associated practices and rituals with those of a traditional religion.
In my opinion, what distinguishes the belief or feelings with which a religion is concerned, and is fundamental to it, is the recognition of the existence of a Superior or Supernatural Being or Power with whom an individual has a personal relation and upon whom his own existence depends. The ``Superior or Supernatural Being or Power'' may be referred to by the individual by any of a number of names, including Allah, God, or Jehovah; but it is immaterial by what name the deity is known or called. Indeed, the Superior Being may be without name. Furthermore, it may not be a single identity; two or more gods may constitute the foundation of a man's belief. The belief or feeling of the individual in relation to the deity is a personal one; although he may recognise and respect that others have their own god, his relationship to his own deity is characterised by the belief that his is the true and only deity.
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Resort for assistance and guidance in establishing the ordinary meaning of a word may be made to authoritative dictionaries; cf.
The Queen
v.
Peters
(1886) 16 Q.B.D. 636
at p. 641
per
Coleridge
L.C.J.;
The Australian Temperance
&
General Mutual Life Assurance Society Ltd.
v.
Howe
(1922) 31 C.L.R. 290
at pp. 294-295
per
Knox
C.J. and
Gavan Duffy
J.; and
A.-G. (Vic.) and
Black
v.
The Commonwealth
(1981) 55 A.L.J.R. 155
at p. 164
per
Barwick
C.J. Definitions of religion found in those sources contain a connection between the belief with a divine or supernatural power, and it is helpful to refer in some detail to those definitions. Thus, the
Shorter Oxford English Dictionary
3rd ed., vol. 2, p. 1697, among meanings ascribed to religion, provides the following:
``5. 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; the general mental and moral attitude resulting from this belief, with reference to its effect upon the individual or the community; personal or general acceptance of this feeling as a standard of spiritual and practical life.''
The Webster's Third New International Dictionary 1971 ed., vol. 2, p. 191 says of religion:
``1. The personal commitment to and serving of God or a god with worshipful devotion, conduct in accordance with divine commands especially as found in accepted sacred writings or declared by authoritative teachers, a way of life recognised as incumbent on true believers, and typically the relating of oneself to an organized body of believers...
6. A personal awareness or conviction of the existence of a supreme being or of supernatural powers or influences controlling one's own, humanity's, and all nature's destiny.''
The Random House Dictionary of English Language 1967 ed. at p. 112 contains the following definition of religion:
``Concern over what exists beyond the visible world, differentiated from philosophy in that it operates through faith or intuition rather than reason, and generally includes the idea of the existence of a single being, a group of beings, an eternal principal, or a transcendent spiritual entity that has created the world, that governs it, that controls its destiny, or that intervenes occasionally in the natural course of its history, as well as the idea that the ritual, prayer, spiritual exercises, certain principles of everyday conduct, etc. are expedient, due, or spiritually rewarding, or arise naturally out of an inner need as a human response to the belief in such a living principal.''
It is observed that the basic element of religion common to each of the three dictionary meanings, which I have quoted, is a belief in, or recognition of, or commitment or subrogation to, a supernatural or divine power.
The provisions contained in the first amendment of the Constitution of the United States by which Congress is prohibited from making laws respecting, inter alia, the establishment and free exercise of religion have given rise to some decisions of the United States Supreme Court concerning the meaning of the word ``religion''. Counsel for the appellant relied upon a line of authority to be found in the United States connected with that provision.
In
Davis
v.
Beason
(1899) 133 U.S. 33
, to which
Crockett
J. referred, the United States Supreme Court said of ``religion'' in the context of the first amendment that it ``has reference to one's views of his relations to his creator'' and to the obligations they impose of reverence and obedience. It would seem, therefore, that the meaning attributed to religion by the Court was consistent with the accepted dictionary one. However, in 1965 the Court in
United States
v.
Seeger
380 U.S. 163
, did not follow
Davis v. Beason
when it considered legislation by which a citizen might claim exemption from combatant training and service in the armed forces by reason of religious training and belief, and which defined religious training and belief as an individual's belief in a relation to a ``Supreme Being''. Delivering the judgment of the Court, at p. 737
Clark
J. said:
``We have concluded that Congress, in using the expression `Supreme Being' rather than the designation `God', was merely clarifying the meaning of religious
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training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief `in a relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is `in a relation to a Supreme Being' and the other is not.''
Referring to the test to be applied when determining a claim for exemption the learned Judge said at p. 747:
``While the applicant's words may differ, the test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?
Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight.''
It is apparent, therefore, that the United States Supreme Court, while accepting that religion is concerned with beliefs, adopted as the distinguishing characteristic of such a belief the degree of its importance to the holder. It might follow from this view and by application of the test formulated by Clark J., that a man's solemn belief in the need for particular standards of conduct, such as loyalty to family or country, might constitute his religion. I am not persuaded that religion is understood or used in everyday speech by Australians in that sense.
Since Seeger's case and applying it, superior Courts of the United States have adopted a meaning of religion wider than those found in the dictionaries.
Decisions of English Courts have not been concerned to provide a judicial definition of ``religion''. Yet there have been cases where matters related to religion have caused opinions of its meaning to be expressed. In
R.
v.
Registrar-General
;
ex parte Segerdal
(1970) 2 Q.B. 697
the matter before the Court of Appeal was whether certain premises were a place of meeting for religious worship. Referring to a ``place of meeting for religious worship'' as used in the
Places of Worship Registration Act
1855 Lord
Denning
M.R. at p. 707 said:
``It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words `place of meeting for religious worship' is that it should be a place for the worship of God.''
From this passage of his judgment it is clear that the Master of the Rolls ascribed to ``religious'' a meaning of pertaining to a deity.
In
Barralet
v.
A.-G.
(1980) 1 W.L.R. 1565
the question for decision by
Dillon
J. was whether a society whose members were agnostics devoted to the study and dissemination of ethical principles and the cultivation of rational religious sentiments was a charity for the advancement of religion. His Lordship (at p. 1571) declined to follow
Seeger's case,
commenting:
``The ground of the opinion of the Court, in the United States Supreme Court, that any belief occupying in the life of its possessor a place parallel to that occupied by belief in God in the minds of theists prompts the comment that parallels, by definition, never meet.''
After considering various authorities, including a decision of the United States Court of Appeals for the District of Columbia in
Washington Ethical Society
v.
District of Columbia
(1957) 249 F. 2d 127
, he acted on his opinion that ``religion is man's relations with God and ethics are concerned
ATC 4216
with man's relations with man''. That his Lordship did not intend by reference to God to mean only the accepted deity of traditional monotheists is apparent from a later passage in his judgment at p. 1572 which reads:``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.''
While the English cases cited do not purport to contain definitions of religion, those expressions of opinion do provide assistance in determining criteria by which a belief should be judged to be a religion.
I consider that religion is not a technical term notwithstanding that it has been the subject of disputation by scholars including theologians, philosophers, and sociologists. Used in the context found in the Pay-roll Tax Act is should be given the meaning in which it is used in everyday speech by informed citizens. In particular, I consider that the belief or faith of a religion is one bound up with a particular deity to the exclusion of all others.
The inquiry on the hearing of this appeal is, therefore, whether there was evidence upon which it could be found that the purpose of the appellant is the fulfilment of functions relating to a religion or the advancement of a religion. In this connection the purpose for which the appellant was incorporated under the Associations Incorporation Act, 1956-1965 (S.A.) might have been of some assistance. By sec. 9(2)(b) of the Act it is provided that an application for incorporation given under the section should state, inter alia, all the objects and purposes of the association, and by subsec. (5) it is provided that every application shall be accompanied by a declaration made by the applicant that the particulars contained in the application are true. Evidence before Crockett J. did not include the application or a copy thereof. There was before him, however, the Constitution and General Rules of the Church of the New Faith from which its objects, both main and otherwise, might be expected to be discovered. The Chief Justice has examined in some detail the contents of the constitution, and I make some further comments about some of its provisions.
Article 2, ``Objects of the Church'', contains eleven sections, the first four of which relate to what might be described as the tenets of the Church. The only reference in the four sections to scientology is found in sec. 1 which is headed ``Religion of Scientology''. The religion is identified as that founded by the Church and further developed by the Church. By art. 9 ``the church'' is defined as the Church of the New Faith. In sec. 7 of art. 2 the Creed requires the establishment and ``charter of libraries, schools, institutes, seminars, chapels, subordinate churches, book shops and other places to encourage the learning, study and practise of the faith of scientology''. However, in the sections numbered 2, 3 and 4 which are headed respectively ``Doctrines of the Church'', ``The Creed'', and ``Religious Unity'', no reference is made to scientology. What is intended by the word ``scientology'' in the constitution is indicated in para. (h) of art. 9 which reads:
``Scientology means the teachings, doctrines and statements of faith set out in sec. 1 to 4 of art. two hereof from which has developed an applied philosophy dealing with the study of knowledge, both theological and technological, which when applied by persons of skill and right faith can bring about desirable changes in the condition of Life.''
Reference back to sec. 2, 3 and 4 of art. 2, however, is not particularly illuminating because there is a degree of ambiguity about the several matters with which the sections are concerned. For present purposes it is sufficient to refer to but a few of the provisions. The foremost ambiguity appears in the opening words of sec. 2, namely, ``to encourage religious faith''. It is not revealed, however, what faith is intended. The four precepts of doctrines which follow the words ``religious faith'' do not connect belief with a particular god or deity. Furthermore, religious faith may embrace the faith of all persons who follow a variety of religions, both monotheistic and polytheistic, many of which are in doctrinal conflict with each other.
Difficulties arise in discovering what is meant in sec. 3 of the constitution, headed ``The Creed'', which by para. (j) requires the teaching and expounding the belief ``that the
ATC 4217
holy book of the Church consists of a collection of the works of and about the great Teachers, including the work of St. Luke''. Who are ``the great Teachers'' is not revealed in the constitution. It is not disclosed whether the term includes the prophets of the Old Testament, the apostles of the New Testament, Mohammed, or any and which other persons who might answer to the description of a great teacher in various religions. By the inclusion of the work of St. Luke, it may be that the teachings of the other apostles have been excluded.Paragraph (k) of the Creed prescribes the teaching and exposition of the belief that ``the saints of the Church are the Messiahs and religious philosophers''. The omission to identify more specifically those intended renders it uncertain which of the religious philosophers of the multitude of philosophers of the past two millennia are included among the saints of the Church. Religious philosophy is, of course, a field of intellectual activity in which there have been and there are at the present time conflicting and contradictory theories, viewpoints and beliefs. Indeed the writings of many religious philosophers would no doubt be rejected by adherents of a religion as heretical. To find some common ground between all the religious philosophers might prove to be a task beyond the capacity of even those conversant with such scholarship.
Examination of the doctrines and creeds set out in the Constitution and General Rules fails to disclose acknowledgment of a particular deity by all members of the Church of the New Faith or a relationship between all members with that deity. It is clear that members of the Church might each hold beliefs in, and have a personal relationship with, a different Supernatural Being.
I conclude that from the Constitution and General Rules of the appellant it cannot be found that ``the faith of scientology'' is a religion or what is scientology. It is therefore necessary to examine the literature of scientology and to consider the evidence adduced for the purpose of deciding whether scientology is a religion, and the final question whether the appellant is a religious institution.
In this connection I would add the following observations to the matters discussed and conclusions formed by the Chief Justice. In the writings of L. Ron Hubbard and his followers, which preceded the Psychological Practices Act 1965 (Vic.), there are to be found occasional references to matters spiritual and religious. Yet literature concerning scientology of the same period contains repeated statements that scientology is non-religious and it does not demand any belief or faith nor is it in conflict with people. There is also to be found the expression, ``People of all faiths use scientology''. Such expressions appear in publications such as Testing bearing copyright (C) 1961 by L. Ron Hubbard. Under the heading ``What is Scientology?'' there are a number of assertions of which the following is typical:
``Scientology means the study of knowledge. `Scio' is knowing in the fuller sense of the word, and `logos' study.''
In the same document there appears the following:
``Scientology - improves a person's personality, intelligence, memory, ability, skill, happiness, and success in life;
Scientology - prevents a worsening of a person's memory, concentration, intelligence, personality, and mental condition;
Scientology - eradicates worries, problems, compulsions and repressions.''
On the same page there is to be found:
``SCIENTOLOGY
Makes
Able People
More
Able.''
It is clear, therefore, that in the pre-1965 period scientology in Victoria offered to members of the public processing for the purposes of improving their intellectual performance and emotional well-being without requiring adherence to or acceptance of any religious beliefs or faith. Examination of the literature published since 1965 does not disclose any change in the objectives or methods or practices of scientology. What
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has occurred has been that those practising scientology having grafted on to the same principles and methods a formula having some semblance to religious dogma and they have set up or founded a Church with many of the trappings of an established religious denomination. I am mindful that its origin or raison d' ê tre is not a criterion by which to assess whether a set of beliefs or a faith is in fact a religion. In the past some religions have come into existence for social or political or other mundane reasons and some have broken away from established religions for similar reasons. There are strong reasons for concluding that the Church of the New Faith was incorporated in South Australia to defeat the provisions of the Psychological Practices Act by which the practice of scientology in Victoria is outlawed. Be that as it may, such spiritual professions as are contained in the more recent literature, such rituals, ceremonies, and clerical practices which its members have adopted, and such canonicals and adornments worn by its clergy are not central to the philosophy of scientology. The methods by which scientology is now practised are the same as those practised before 1965, and there is no requirement that those undergoing a personal efficiency course should have any belief in a superior being or deity. From the evidence adduced at the hearing, it could properly be concluded that the appellant is the instrumentality through which scientology, in a form unchanged from its form before 1965, is practised and disseminated in Victoria.For these reasons and the reasons appearing in the judgment of the Chief Justice, I consider that the evidence did not establish that the purpose of the Church of the New Faith is for either the fulfilment of functions relating to a religion or the advancement of a religion. It follows that the finding of Crockett J. that the appellant is not a religious institution was, in my opinion, a proper one.
In forming this conclusion, I have not taken into account the question whether the appellant is in breach of the provisions of the Psychological Practices Act, which was raised for discussion by my brother Brooking at the outset of the hearing of the appeal. I have not done so because the respondent, through its counsel, expressly disclaimed reliance upon any such breach, and he did not choose to discuss any of the authorities relevant to the question.
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