The Free Daist Communion of Australia Limited v. Comptroller of Stamps (Vic.)Members:
G Gibson M
Administrative Appeals Tribunal of Victoria
G. Gibson (Member)
1. The issue
The applicant, The Free Daist Communion of Australia Ltd., says that it is a religious group. The Crown says it is not. The applicant is a company limited by guarantee. It is the tenant of premises in the city of Melbourne at 37 Little Collins Street. It took a five year written lease of those premises on 1 December 1986. The lease was assessed for stamp duty in the sum of $915.60. The applicant's objections to the assessment were disallowed by the respondent Comptroller and then referred to this Tribunal. The applicant claims exemption under Exemption 3 of Heading VIII to the Third Schedule of the Stamps Act 1958. That exemption is as follows:
``(3) Any lease granted or assigned to any registered friendly society or for religious charitable or educational purposes or to any corporation or body of persons associated for any such purpose.''
The issue for this Tribunal is whether the applicant is a corporation or body associated for religious purposes or whether the lease was granted for religious or charitable purposes. The applicant did not seek to rely on the reference to educational purposes in the exemption. The applicant has the onus of proving that it is a religious group.
The applicant called oral evidence from its ``official spokesman'', Mr Peter Roberts, who is a director of the applicant, and who has been associated with the community surrounding the applicant for 14 years. In the course of the evidence of Mr Roberts, the applicant tendered some nine books from the writings of the founder of the movement behind the applicant, Da Free John. There was agreed documentary evidence, such as the lease and the objection to the assessment, to which was appended a memorandum setting out the nature of the activities of the applicant. The Crown called no evidence. I set out below a summary of the evidence led on behalf of the applicant.
3. Evidence of the history and practices of the applicant
- (1) The applicant conducts a bookshop on the ground floor of 37 Little Collins Street and conducts what it calls educational activities under the name ``The Laughing Man Institute'' on the first floor. In the lease, the proposed use of the premises is described as ``Retail bookshop''.
- (2) The applicant company was founded in 1981. Its present name is its fourth: the previous names were ``The Free Primitive Church of Divine Communion Limited'', ``Advaitayana Buddhist Communion of Australia Ltd.'' and ``The Johannine Daist Communion of Australia Limited''. The objects of the applicant as set out in cl. 2 of the Memorandum of Association are:
- ``(a) To arrange for, promote and foster the establishment and development of a charitable, religious, non-profit organisation dedicated to making available to as many persons as possible the teaching of Da Free John or the successor or successors named by him.
- (b) To arrange for, promote, develop and assist the study and the acquisition, dissemination and application of knowledge and information concerning the beneficial effects of the philosophies, guidance, techniques or other teachings of Da Free John or the successor or successors named by him.
- (c) In furtherance of the objects of the Church to encourage, stimulate and aid research and investigation into the teachings of Da Free John or the successor or successors named by him.
- (d) To take over the funds and other assets and liabilities of the present unincorporated Association known as `The Free Primitive Church of Divine Communion'.''
- The memorandum then goes on in the usual form to list further objects which are expressly said to be ``solely for the purpose of carrying out the aforesaid objects and not otherwise''. The Articles of Association (cl. 3) set the commencing number of members at 100, but I was informed that this was common from in companies limited by guarantee at the time the applicant was incorporated.
- (3) There had been an association of those interested in the teachings of Da Free John - whom I shall refer to as the community - formed in Australia in about 1974.
- (4) Da Free John was born Franklin Albert Jones at Long Island, New York, in 1939. He was brought up in the Lutheran Church. He has had an interesting life. He now lives in Fiji and is 47 years of age. He has three children. His life history, and his transition to the place that he now occupies in the spiritual life of others, can be seen through the books that were tendered. There is, for example, a life history at the beginning of The Enlightenment of the Whole Body. It requires in parts, as it seems to me, some quite deliberate acts of faith in describing this development of a ``Heaven-Born Teacher'', with its ``Appearance of the Spiritual Master'', ``the Revelation of Teaching'' and ``Sublime Instruction''.
- (5) The community was first formed in the United States, in 1972, in Los Angeles. It was, I think, first there described as the Dawn Horse Communion. The community is now represented at centres in Melbourne, Sydney, Auckland, Hawaii, other parts of the United States, Canada, London and Amsterdam. The community has about 50 practising members in Australia, predominantly in Melbourne and Sydney.
- (6) Practising members of the applicant are members of The Laughing Man Institute. That is the name of the educational arm of the community, of which the applicant and
ATC 2003its members are now parts. Membership of the applicant is gained by written application and oral examination. There is also a medical and psychological examination. Mr Roberts thought that the psychological examination was not substantially different to that offered to those wishing to undergo teaching for part of the Protestant or Roman Catholic clergy. Membership depends on the capacity of the applicant to follow the teachings of the community.
- (7) In addition to the 50 or so members in Australia, there are 50 ``formal friends''. These people contribute at least $200 per annum to the applicant, participate in some of its events, get the magazine put out by the applicant, and generally associate with members. Mr Roberts thought that there are about 800 practising members in the community throughout the world; a memorandum filed with the Tribunal puts the number at 1,200.
- (8) The community is open to everyone. The name ``Da'' in the name of the founder has a Sanskrit root and connotes both the given and the divine. There are seven recognised phases through which members pass, but there is no structured priesthood. Members are expected to take responsibility for their own lives. As they get more experienced, they are expected to look after less experienced members. Mr Roberts said that the community believed in immediate revelation - that is why, he said, the name of the applicant at one time included the word ``Primitive''. From the beginning of membership, the members, who are called ``practitioners'' and ``students'', are expected to simplify their lives in relation to matters such as diet, sex, drugs and stimulants. Good physical health is encouraged to promote spiritual growth. This kind of training is carried out at The Laughing Man Institute.
- (9) The community worldwide operates a publishing house called ``The Dawn Horse Press'', which is situated in California. The bookshop in Melbourne - the site of the premises that give rise to the lease under consideration - is called ``The Dawn Horse Bookshop''. The Dawn Horse Press publishes the writings of Da Free John. Those writings are voluminous. There are about 40 books.
- (10) At its Melbourne address, the applicant sells spiritual works and also books that offer practical guidance for everyday life. It sells a wide range of religious literature. It has an interest in getting people interested in the great religious traditions. It hopes both to instruct and to inspire. It sells works relating to the great Christian mystics, and works relating to religions like Hinduism and Buddhism. The bookshop currently has some 5,000 titles. Less than 10% of these come from the community's own publishing house. About 85% of the works from that source are written by Da Free John. According to the notice of objection, the centre at Little Collins Street provides a chapel where members worship on Sundays.
- (11) The applicant regards the bookshop and The Laughing Man Institute as educational. In addition to offering instruction to new and potential members, The Laughing Man Institute runs seminars and videos. It seeks to draw attention to traditional religions. It also offers classes in yoga. Film is shown of Da Free John, and also of various saints. Mr Roberts said that one aim was to get people interested in the religion which they already espoused; an ulterior motive was to attract their interest to the community. The facilities of the applicant are advertised in the Melbourne press. Mr Roberts said that he had attended a number of gatherings at The Laughing Man Institute; although he had been inspired by some, he confessed to being a little bored by others.
- (12) The applicant itself, and the bookshop in particular, are, I was told, run as non-profit making units. The Memorandum of Association of the applicant contains the usual provisions (in cl. 3 and 6) prohibiting the distribution of income or property to members. Mr Roberts said that although members are tithed to the extent of 10% of their income, the applicant had never made a profit. He said that its books of account (which were not tendered) were audited by a substantial Melbourne firm of accountants. He was not aware of any money having been sent by the applicant to the United States. According to the memorandum attached to the objection, the community has a policy of not canvassing the public for
ATC 2004funds, or proselytizing in order to increase membership.
- (13) Mr Roberts said that the community in general, and members of the applicant in particular, believe in the existence of God. I was referred to a number of passages from the writings of Da Free John on the subject of God. In his evidence, Mr Roberts said that members of the applicant believed in God at least in the sense of something before and beyond what is present in the physical world. It is clear from at least some passages in the writings that Da Free John rejects the notion that the existence of God is susceptible of rational proof, perhaps even ``proof'' by revelation. In The God in Every Body Book (at pp. 23-24) the following appears:
- ``The God of Nature, the Creator God, cannot be proven because that One does not exist as proposed. But the Great God is Transcendental and exists in the Self-Position Transcendentally. In other words, It exists at the level of our eternal Existence and not at the level of the objects related to our conditional egoic existence, our manifest independence. This same One is also present to us in the form of all others, all objects, all states of nature - not as other, but rather as that One in which we inhere. That One is present as the Adept, the human Agent or Transmitter, but not in any exclusive sense, not as the Holy Other, but as That which manifests the Power of the Self-Position, the Transcendental Condition. That One is present as Spiritual Force, transmitted through Baptism and Good Company. And the purpose of Spiritual Baptism or reception of an Adept's Transmission, therefore, is to lead us into the Realization of That which is in the Self-Position. Its purpose is not to call us to conform to an apparent Power outside ourselves that requires us to engage in activities very similar to the childish social routines of conventional religiosity.
- Thus, the Truth that is to be Realized may be summarized simply as the Realization that no matter what is arising, no matter how many others are present, there is only One Being. That is precisely different from the childish proposition that even when you are alone there is always Someone Else present.''
- In The Four Fundamental Questions (at p. 93) the following appears:
- ``We believe on the basis of intuitive feeling that there is only God, the God that is Real and Absolute and that cannot be sought or found within or without, nor ever proved by the mind, but can only suddenly be felt with the whole being, and then loved and surrendered to from the heart, as Life, Spirit, Consciousness, All-Pervading Presence. In our approach religious life begins through an intuitive awakening of the human heart. That awakening is given by Grace.''
- Mr Roberts said that he took the teachings of Da Free John on faith. For him, the claim rang true that there is only one God, and that that God is realisable; he thought that through his application to study, he had begun to realise God, and that he had become a happier person, and, hopefully, one who is better able to serve. According to his learning, there was some correlation between this aspect of the teachings of Da Free John, and the radical adherence to God as one without a second shown by some traditions of the Advaita Vedantist, sometimes said to be a part of Hinduism. He wondered whether there might not be some connection, too, with the First Commandment of the Old Testament.
- (14) Members of the community may take part in worship, but this is reserved for the more mature students. Mr Roberts thought that worship was most useful at that phase of the development of a member when he is capable of an immediate experience of God. Detailed instruction on worship can be found in Chapter Five of the book Bodily Worship of the Living God. As indicated above, the notice of objection stated that members worship in the chapel at Little Collins Street every Sunday.
- (15) The morality espoused by the community is not, said Mr Roberts, prescriptive. But he was at pains to emphasise that mere belief in the divine is not sufficient, that members are expected to share the realisation of God: they are
ATC 2005practitioners, not mere believers. In the memorandum filed by the applicant, reference is made to the practice of ``true religion'' and it is said that ``In our faith, this practice necessarily involves a life of self-discipline, in which the recommendations offered by the communion must be lived in order to give effect (or real potency) to belief in God''. In The Four Fundamental Questions (at p. 98) the following appears:
- ``The moral discipline of this Way is simple to understand but hard to fulfil: It is to look and feel and be and act completely happy at all times, and to radiate or express joy and love in all relationships, no matter what occurs in life, and no matter what may be anyone else's response or lack of response. The fundamental expression of this moral discipline is service, the giving of energy and attention to others and to God in every moment. This moral gesture is the foundation for the creation of real spiritual and cooperative community life.''
- A connection between theology and morality can be seen from passages - many of which are obscure to the uninitiated - such as the following from The Fire Gospel (at pp. 35-36):
- ``So - everything and everyone is a spirit, every apparent entity or individuated something or other is made of energy and therefore in practical terms may be designated a spirit. This is the basis of the animistic view, the shamanistic view, the vitalistic view at the root of all religion. Likewise, there is one Spirit. All individuated spirits or states of energy are modifications or transformations of a Universal Energy, the Great Spirit, the Divine Spirit, the Holy Spirit, the Maha-Shakti, Prakriti. The most basic notion of religion, therefore, is that it is association with spirits, and the high conception of religion is that our relationship with the one Spirit that Pervades all is Senior to our relationship to all other spirits.
- What Jesus said is a summation of the Hebrew law: Love God, Who is Spirit. Love the Great Spirit totally. Submit yourself totally to the Great Spirit and love all others as spirits in that One Spirit. Treat all others as spirits like yourself. Enter into a harmonious spiritual relationship with others and with the world. However, do not make this second principle of the law senior to the first. The first principle is senior. Submission to the Great Spirit, the Transcendental Spirit, is the fundamental import of high religion, and its secondary principle is based on the first: Be Spirit-born or Spirit-alive and relate to others likewise.''
- Mr Roberts said that since members of the applicant lived as a community, there are agreements between them as to how they are to behave. Members have been disciplined by suspension or even expulsion for not following the required behaviour.
- (16) Prayer plays a part, but, I gather, only a limited part in the spiritual life of members of the applicant. Mr Roberts thought that there were inherent weaknesses in neurotic prayer. In Bodily Worship of the Living God (at p. 39) Da Free John described what people commonly know as prayer as ``a form of conventional magic activity that has as its ultimate goal the fulfilment of self and its functional desires''. After referring to ``true prayer'', he goes on to say:
- ``In this truly prayerful Communion, all aspects of the body-mind are naturally surrendered and aligned to the Living God, and, therefore, that Power also Works directly in the experience of those who pray in Truth.''
- (17) Members of the applicant revere Da Free John as a teacher and love him as a man. But he has not, so far as I can see, claimed to have the same identity with God as have some founders of religion. In The Enlightenment of the Whole Body, the biography that I referred to above refers to his followers as devotees and says (at p. 3) of the ``Heaven-Born'' teachers that:
- ``They are beyond the human, infinitely beyond the superhuman; they are Divine Men. In the Form of such Masters, God lives among human beings, for the sake of their Liberation into Happiness. Such Masters incarnate the Divine Power of Awakening. They do not have to do
ATC 2006anything to manifest that Power; they are that Power, by virtue of being perfectly transparent in body, mind, and heart to the All-Pervading Consciousness of God.''
- (18) Members of the community do not claim to have an exclusive entitlement to truth or salvation. Mr Roberts thought that it would be possible for a practising Roman Catholic to be a friend of the community - he said some priests were - but it would not be possible for such a person to continue that practice while becoming a member of the community. Mr Roberts himself was brought up as a Roman Catholic. Without comment from anyone, he took the oath on the Bible.
- (19) The literature shows a number of classifications of members of the community, and phases of membership. One classification is by five divisions (The God in Every Body Book at p. 136) as follows: The Laughing Man Institute (the public educational division), The Free Communion Church (the devotional Culture of Celebration for practising students), The Crazy Wisdom Fellowship (the educational and cultural organisation for maturing practitioners), The Advaitayana Buddhist Order (reserved for those in the higher or esoteric stages of practice) and The Free Renunciate Order (the devotees who have Realised the ultimate stage of practice of the Way). According to this division, no one in Australia has passed beyond the first stage.
- (20) The membership of the applicant is equally represented between men and women; the members tended to be well educated; there is a slight preponderance of professional people; they are generally married, and middle-class; they generally become members between the ages of 25 and 40; they generally maintain their occupations when they are admitted as members.
4. Findings on the evidence
As indicated, the Crown called no evidence. The evidence of Mr Roberts was not contradicted. Nor was it seriously challenged; the Crown did not contend that he was a liar or that the founder of the community is a fraud. Mr Roberts himself is a venture capitalist with a managed investment company recognised by the Federal Government. Before undertaking that role he was the president of a computer company in California. He now spends most of his time as a venture capitalist, but finds a lot of time for the affairs of the community. He presented as a literate, articulate, persuasive and, I think, candid witness. Although I can imagine that some might find his persuasiveness in some circumstances to be a little disconcerting, no attack at all was made on his credit, and I think that I should accept his evidence substantially as I have set it out above. I think the references to the contents of the memorandum put in by the applicant are consistent with that evidence and should also be accepted. Accordingly, the summary of the evidence of the applicant should be regarded as findings of the Tribunal. I also find on the probabilities from all the evidence that members of the applicant endeavour to follow and apply the teachings from the books of Da Free John that I have referred to above.
The Church of the New Faith v. Commr of Pay-roll Tax (Vic.) 83 ATC 4652; (1983) 154 C.L.R. 120, most members of the High Court were at pains to point out that the question before the High Court was whether, on the evidence that was before the Victorian Supreme Court, scientology was a religion. The question was not whether the appellant corporation was a religious institution.
The High Court found that on the available evidence scientology as practised in Victoria was a religion. Mason A.C.J. (as he then was) and Brennan J. said (at ATC p. 4658; C.L.R. p. 136):
``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
ATC 2007of 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.''
Murphy J. said (at ATC p. 4667; C.L.R. p. 151):
``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... 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 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 astrologists 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 other countries must be included. The list is not exhaustive; the categories of religion are not closed.''
Wilson and Deane JJ. said (at ATC p. 4682; C.L.R. p. 174):
``One of the more important indicia of `a religion' is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has `a religion'. Another is that the ideas relate to man's nature and place in the universe and his relation to things supernatural. A third is 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. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium... is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.
As has been said, no one of the above indicia is necessarily determinative of the question whether a particular collection of ideas and/or practices should be objectively characterised as `a religion'. They are no more than aids in determining that question and the assistance to be derived from them will vary according to the context in which the question arises. All of those indicia are, however, satisfied by most or all leading religions. It is unlikely that a collection of ideas and/or practices would properly be characterised as a religion if it lacked all or most of them or that, if all were plainly satisfied, what was claimed to be a religion could properly be denied that description.''
The Court was unanimous in holding that for the purposes of the law religion should not be confined to theistic religions.
6. When considering the judgments in The Scientology case, it is of course necessary to remember that they are just that; they determined a particular case; they emanated from a building cast in concrete; they are not cast in stone; they are not a statute; exegesis may or may not be compulsory, but if taken too far, may not be compelling. As has been seen, Manson A.C.J. and Brennan J. fixed two necessary criteria; Murphy J. stated a number of criteria that might be sufficient, and none of which is apparently necessary; Wilson and Deane JJ. referred to a number of criteria that might be sufficient, and none of which was apparently thought to be absolutely necessary, although some are clearly more significant than others. The two criteria identified by Manson A.C.J. and Brennan J. (belief in the supernatural and canons of conduct) are also identified by Wilson and Deane JJ. and, in my view, as their most significant criteria; they may also, I think, be found in the judgment of Murphy J. Murphy J. did not, in my view, find that it was sufficient that a group claimed to be religious: if it were thought that he had, such a proposition would not in my view stand against the other judgments of the Court: that criterion
ATC 2008was expressly rejected as a legal criterion by Mason A.C.J. and Brennan J. (at ATC pp. 4655-4656; C.L.R. p. 132); I do not think that the remarks of Wilson and Deane JJ. (at ATC p. 4682; C.L.R. p. 174) could be taken as indicating that that criterion alone could be sufficient. Mason A.C.J. and Brennan J. seemed to require the acceptance of canons of conduct ``in order to give effect'' to the belief in the supernatural; on the text, there is scope for argument as to whether Wilson and Deane JJ. postulated the same connection. This debate seems to me to be sterile. I find it hard to envisage a religious body persuading a court that its adherents believed in the supernatural and had accepted canons of conduct without at the same time establishing some connection between the two in the course of proving itself to be religious. Similarly, I find it a little difficult to envisage the first criterion of Wilson and Deane JJ. (belief in the supernatural) being satisfied without also the second criterion (the ideas relating to man's nature and place in the universe and things supernatural) being satisfied. One might also expect the fourth criterion (an identifiable group however loosely knit) being satisfied by a body claiming to be exempt from tax. The fifth criterion is admittedly more controversial, except that one would be surprised to see a body claiming exemption from tax on the grounds that it is religious if it did not itself regard its ideas and practices as religious. For myself, I find it very difficult to envisage a case where the criteria of Mason A.C.J. and Brennan J. are satisfied, and the body is not characterised as religious; as a matter of fact (and probably not law) I also find it a little difficult to envisage a body being characterised as religious that does not satisfy those two criteria. Despite some apparent fears to the contrary, as a matter of practical reality I doubt that the ruling in The Scientology case should present any more difficulties than the subject warrants.
7. Submissions of the applicant
Counsel for the applicant was content to measure the evidence tendered on behalf of the applicant and submit that all of the criteria put forward by the members of the Court in The Scientology case were satisfied. Additionally, it was argued that the lease was granted for religious purposes, or, alternatively, charitable purposes. It was said that even if the Tribunal found that the applicant was not a corporation associated for religious purposes, the lease was granted for other purposes beneficial to the community within the fourth classification of charitable trusts of Lord Macnaghten in
Commissioners for Special Purposes of Income Tax v. Pemsel (1891) A.C. 531 at p. 583. Reliance was placed on Re Price (1943) 1 Ch. 422 and
Re South Place Ethical Society (1980) 1 W.L.R. 1565. It was said that
Re Resch's Will Trusts (1969) 1 A.C. 514 established that the fact that the applicant charges for books is not fatal to the contention that its relevant activities are charitable.
8. Submissions of the Crown
The primary contention of the Crown was that the applicant had not adduced sufficient evidence to discharge the onus placed upon it by sec. 33C(1)(b) of the Stamps Act of establishing that it was associated for religious purposes. It was said that no conclusion could safely be drawn from the literature that was tendered, since it required explanation and used words with peculiar meanings, and that therefore I could not be sure what any given passage meant. The suggestion was that the material had not been sufficiently explained. It was said that Mr Roberts in cross-examination had conceded that there was no distinction between his conception of God and his conception of reality, and that the applicant had failed to demonstrate the connection between belief and conduct said to have been required by passages of the judgment of Mason A.C.J. and Brennan J. in The Scientology case at ATC pp. 4661-4665; C.L.R. pp. 142-148. On the argument that the lease was granted for religious purposes, it was said first that the purpose must be ascertained at the time of the grant of the lease (and that the terms of the lease itself were the best evidence of this); secondly, that use of the premises for a bookshop like The Dawn Horse Bookshop could not be said to be a use for religious purposes (since not every purpose associated with religion is a religious purpose); and, thirdly, that the evidence did not permit a finding as to what was more important, the conducting of The Dawn Horse Bookshop or The Laughing Man Institute. By reference to
Commissioners of Inland Revenue v. Forrest (1890) 15 App. Cas. 334 at p. 338 (Lord Halsbury L.C.) and
Minahan v. Commr of Stamp Duties (1926) 26 S.R. (N.S.W.) 480 at p. 481 (Street C.J.) (referred to in War Nurses
Memorial Centre v. Comptroller of Stamps (1985) 1 V.A.R. 120 at p. 125) it was said that the applicant had to show that the lease was granted mainly for the purposes of religion, and this it had quite failed to do. As to the lease being granted for charitable purposes, the Crown was, as I understood it, content to rest on the same arguments it put in relation to religious purposes.
9. The applicant as a religious organisation
It seems to me that three related kinds of issues may confront an Australian Tribunal that has to decide whether in the eye of the law a body of persons is religious or is associated for religious purposes within the law of charity.
- (1) Sooner or later someone will ask you to try to wedge into a logical proposition - a syllogism - something that by definition is meant to go beyond logic: cf. Wilson and Deane JJ. in The Scientology case at ATC pp. 4680-4681; C.L.R. p. 171. Students of religion may or may not be comfortable with this - it may be more acceptable to some Western religions than some others - but the lawyer must, I think, feel some discomfort. The law and religion often do not mix well. If I may be permitted to say so without offence, you have only to look at the different treatment accorded to the Moravians by the Chancery lawyers and the common lawyers at the various levels in Pemsel's case, or at the controversy currently going on about the juristic treatment accorded by Lord Atkin to the New Testament rule that you are to love your neighbour.
- (2) Because of a fear of intolerance, persons claiming to be religious may, as it seems to me, get the benefit of the doubt, just as the State gives the benefit of the doubt to those whom it wishes to brand as criminals. In the result, some may get more protection than some would say is warranted, out of fear that otherwise some may be unfairly dealt with. The Australian Constitution (sec. 116) does give some protection in respect of freedom of religion. Whatever may have been the contemporary sensibility of Australian lawyers on the matter of religion had they otherwise been left to their own inclination, it is liberal by virtue of a constitutional imperative; to the extent possible, toleration is ordained. In The Scientology case, Mason A.C.J. and Brennan J. referred (at ATC p. 4655; C.L.R. p. 131) to the possible subversion of religious liberty and equality if a narrow definition of religion were accepted in order to accord with a concept currently adopted by the majority of the community; their Honours later referred (at ATC p. 4661; C.L.R. p. 141) to charlatanism as ``a necessary price of religious freedom''. Murphy J. (at ATC p. 4666; C.L.R. p. 150) said:
- ``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'.''
- Wilson and Deane JJ. said (at ATC p. 4682; C.L.R. p. 174) of the decision of whether or not a group of ideas or practices should properly be characterised as a religion:
- ``Ultimately, however, that question will fall to be resolved as a matter of judgment on the basis of what the evidence establishes about the claimed religion. Putting to one side the case of the parody or sham, it is important that care be taken, in the exercise of that judgment, to ensure that the question is approached and determined as one of arid characterisation not involving any element of assessment of the utility, the intellectual quality, or the essential `truth' or `worth' of the tenets of the claimed religion.''
- (3) As much as, if not more than, England, Australia is a polyglot society. But
ATC 2010Australia, with its constitutional protection of religion, has no State religion. Much of the old English legal history - both statutory and common law - is affected by clashes of interest between the State and its Church, and between religious factions, that are likely to be embarrassing to contemporary Australians: see the remarks of Sir Isaac Isaacs in
Nelan v. Downes (1917) 23 C.L.R. 546 at pp. 565-568, esp. at p. 568. To take one example, the subject of religion was deliberately - that is to say, as the result of a political decision - not dealt with in the Statute of Elizabeth (43 Eliz. c. 4), except for a passing reference to the repair of churches. But the statute provided for the Irish (10 Charles I (1634)) expressly stipulated ``for the maintenance of any minister and preacher of the Holy Word of God'': see Pemsel's case at pp. 545-546. Nevertheless, at least for some time now, the English common law of charity has shown the same disinclination to make any distinction ``between one sort of religion and another'':
Thornton v. Howe (1862) 31 Beav. 14, 20, Sir John Romilly M.R.
10. Now, it does seem to me that the findings referred to above (para. 3 and 4) permit only one conclusion, whichever of the relevant criteria are to be applied. I do bear in mind the warnings given about the dangers of purporting to understand religious writing much of which is unashamedly esoteric. But such a warning must I think go both ways: the onus is on the applicant to establish its case, and if it tenders material that is obscure to the point of being impenetrable, it does so at its own peril, unless it adequately explains it; but the material should not be rejected because it may appear to some to be childish, fanciful, banal, twisted, or half-baked. Nor, in my opinion, can the Tribunal just wash its hands and walk away refusing to determine a question, simply because most of the relevant material may, for one reason or another, pass its understanding. The Crown expressly accepted that the literature appeared to be respectful, sober and to address religious themes; the Crown did not attack the sincerity of Mr Roberts, or the man whose teachings he accepts. When I look at the literature, two things at least seem to me to be clear enough: first there is a belief in God, and secondly, that belief affects the conduct of the believer. What so appears from the literature is consistent with and confirmed by the evidence of Mr Roberts both as to his understanding of the literature and as to what members of the applicant do and believe. I do not think that Mr Roberts committed himself to a logically untenable position of confining God to the world. For myself, in a case like this, I would require clear demonstration of such a result from mere verbal duelling, since I have some difficulty in following an attempt to confine within the constraints which rule the minds of most men, a notion whose central purpose may be to break free from those constraints. Furthermore, it is apparent from the evidence (para. 3(15) above) that the belief of members of the applicant in God is meant to affect their conduct, and does so. In my judgment the evidence as a whole is amply sufficient to establish that the applicant is associated for religious purposes within the law as laid down in The Scientology case.
11. On the evidence in this case, it is in my view unnecessary to attempt any synthesis of the judgments in The Scientology case. Based on the findings of fact that I have made, I find that the members of the applicant believe in God; they have an approach to life and conduct and morality that is affected by their belief in God; their ideas help them to relate themselves to other people, the world, and the supernatural; they are an identifiable group; they regard their community as a religious community supported by religious ideas and practices; they participate in worship and prayer and other conduct that resembles the conduct of other religious bodies; they believe that the teachings of their founder offer a way to find meaning and purpose in life. In my opinion, each of those findings is compelled by the findings of fact, and it follows that the applicant must be regarded as a body associated for religious purposes.
12. Lease for religious or charitable purposes
What I have said above is sufficient to dispose of this reference. At the hearing, the applicant abandoned its prior contention that the lease had been granted for educational purposes. In the end, the applicant did not vigorously pursue the contention that the Tribunal could find that the lease was granted for religious purposes even if the applicant were not found to be associated for those purposes. That leaves the contention that the lease could be said to have been granted for
ATC 2011charitable purposes. This argument was also ancillary to the principal contention and interest of the applicant, which was to establish its validity as a religious group. The argument on this point was short, and the evidence not satisfactory. While I feel some persuasion by the analogies offered by Re Price and Re South Place Ethical Society, I see some force in the objections of the Crown as to the state of the evidence. Questions arising about trusts for ``other purposes beneficial to the community'' are often difficult. Because of the nature of the argument and the evidence in this case, and because I have a clear view on the principal question, I think that it would be better if I did not now determine the secondary question, but leave it to be determined if and when the need arises.
Each side sought costs if it won, but not to have to pay the other side if it lost. The applicant has won. The Commissioner led no evidence. It did not attack the credit of the witness for the applicant or the bona fides of the applicant. The applicant provided a substantial memorandum to the Comptroller describing its beliefs and practices by reference to the judgments in The Scientology case. The applicant also tendered a letter of exemption from the Deputy Commissioner of Taxation (dated 26 July 1984) saying that the applicant was exempt under sec. 23(e) of the Income Tax Assessment Act 1936, which exempts from income tax the income of religious, scientific, charitable or public educational institutions. On the other hand, the Crown said that matters of public policy were involved and that this case was the first to arise involving an application of The Scientology case. The Comptroller must of course examine claims for exemption, and is entitled to have a claim such as that made by the applicant publicly tested. In some cases toughness and humility might have to be nicely combined. But why should not the Crown indemnify a body that it subjects to the test of religion, and which passes that test, particularly in this case, where the test has been easily passed? There was a suggestion that The Scientology case was controversial. It was said that the scientologists only just fell in; so did the Moravians in Pemsel's case. The High Court did indicate that a narrow, and potentially unreal, issue arose for its determination in that case; to put it softly, the evidence disclosed more than a whiff of humbug about the activities of the taxpayer in that case, something here disclaimed by the Crown. The problem is no doubt my own, but I can see no big issue of principle in this case; indeed, on a consideration of the unchallenged evidence and the only relevant authority, I was left wondering what all the fuss was about. I myself see no real reason to fear that the new dispensation, if it is that, may be a charter for charlatans or frauds. I find it a little difficult to divorce such a fear from the proposition that the relevant tribunals are likely to be duped. If it is thought that the present constitutionally effected width of religion is too wide safely to allow it exemption from tax, one answer may be to limit the relevant exemption to charitable organisations, where public benefit must be established, or at least can be disproved; an alternative course appears to have been pursued in the legislation before the High Court in The Scientology case (see at ATC p. 4676; C.L.R. p. 164). But these are matters for others. There has been some debate about the extent to which the tax context should affect the exposition of the law of charity. But it is hard to resist the sense of the following remarks of Lord Halsbury in dissent in Pemsel's case (at p. 551):
``There is no purpose in a Taxing Act but to raise money, and an exemption is just as much within this criticism as any part of the Act, since every exemption throws an additional burden on the rest of the community.''
Or, as Cardozo J. once observed (in
Burnet v. Guggenheim (1933) 288 U.S. 280 at p. 286): ``The construction that is liberal to one taxpayer may be illiberal to others.''
14. In my view, the Crown should pay costs to give some indemnity to the applicant for its legal costs incurred in this particular exercise. I think that it would be best if I fixed the costs now. The case ran for the best part of two days, and would, I think, have entailed some preparation above that normally included in a brief fee. I take into account the relevant regulations, in particular cl. 9 of the Administrative Appeals Tribunal (Taxation Division) Regulations 1985, and the reference there to County Court costs, which I think in this case should be toward the upper end of the relevant scales. I think that I may also act on my own knowledge of the market in legal fees
ATC 2012and costs, and the quantum of orders for costs previously made by this Tribunal. Taking those factors into account, I should think that I should fix $2,700 as the sum to be paid by the Crown to the applicant.
The Comptroller did not contend that any duty would otherwise be payable if the applicant succeeded in its contention that it was entitled to the relevant exemption; if that is not the case, the parties can mention the matter at an appropriate time. For the reasons given above, the orders of the Tribunal are that:
- (1) the assessment under reference be varied by being reduced to nil; and
- (2) the respondent pay to the applicant $2,700 costs of the reference.