The Church of the New Faith v. Commissioner of Pay-roll Tax (Victoria).

Judges:
Young CJ
Kaye J
Brooking J

Court:
Supreme Court of Victoria (Full Court)

Judgment date: Judgment handed down 5 May 1982.

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Young C.J.

This is an appeal from a judgment of Crockett J. disallowing an objection by the appellant to an assessment for pay-roll tax. The assessment is upon the taxable wages paid or payable by the appellant in respect of the period 1st July 1975 to 30th June 1977. The amount of the assessment is $897.80. The appellant contends that wages paid by it are exempt from pay-roll tax by reason of the provisions of sec. 10 of the Pay-roll Tax Act 1971, which exempts (inter alia) wages paid or payable:

``(b) by a religious or public benevolent institution, or a public hospital;.''

The appellant was incorporated in 1969 pursuant to the provisions of the Associations Incorporation Act, 1956-1965 of South Australia under the name of The Church of the New Faith Incorporated. At all material times it has been registered as a foreign company in Victoria pursuant to the provisions of the Companies Act 1961. On 3rd March 1975, the appellant changed its name to the Church of Scientology Incorporated but registration of the change of name has been refused in Victoria, perhaps in the light of the Psychological Practices Act 1965 (Vic.).

The Associations Incorporation Act of South Australia permits the incorporation of an association of a kind defined in the Act. The definition is as follows (sec. 4):

```association' means -

• (a) any church, chapel or religious body;
• (b) any school or hospital;
• (c) any benevolent or charitable institution;
• (d) any body or committee of persons formed for the purpose of administering (whether as trustees or otherwise) any scheme or fund for the payment of superannuation or retiring benefits to the members of any organization or the employees of any body corporate, firm or person;
• (e) any association for the purpose of recreation or amusement, or for promoting or encouraging literature, science or arts, or for promoting or improving community centres;
• (f) any association formed or to be formed for promoting any like object or any of the aforesaid objects or any other useful object,

but does not include any association for the purpose of trading or for the purpose of securing pecuniary profit to the members from the transactions thereof:''

It was not suggested before us that the nature of an association which can be incorporated under the Associations Incorporation Act throws any light upon the question for decision. It may be observed, however, that the Act nowhere explains very clearly what is the status of the rules of the incorporated body.

During the argument before us much attention was paid to the question whether ``Scientology'' is a religion. Before turning to that question, however, I think it is desirable to refer to the Constitution and General Rules of the Church of the New Faith. This is because the question for decision on the appeal is whether the appellant as a foreign corporation in Victoria is a religious institution.

The Constitution and General Rules are divided into nine ``Articles''. Each Article is divided into two or more ``sections''. Article one is entitled ``Location and Membership'' and is divided into eight sections. By sec. 1 it is provided that the principal ``office of the Church'' is to be at 23 Peel Street, Adelaide. Section 2 is headed ``Eligibility for Membership'' and reads:

``The Church shall be composed of all persons irrespective of race, colour, sex or

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origin who have been accepted into membership by the Board of Trustees who accept the objects of the Church and who profess the belief 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 who further believe that by their use of the Church hope to bring a greater tranquillity to the State and better order and survival to Man upon this planet.''

Section 3, entitled ``Excommunication'' provides for the expulsion from the Church of any member who has failed to pay dues or tithes without reasonable excuse, acted contrary to the constitution or rules or has been guilty of heresy. Dues are said by sec. 4 to be at least $5.00 per annum but may be higher. Section 5 deals with ``Tithes'' and provides that they are payable within three calendar months of a formal demand. Section 6 provides for resignation upon three months' notice. Section 7 exempts a member from liability for further dues or tithes from death. Section 8 provides for life membership which may or may not carry exemption from further dues or tithes.

Article two is entitled ``Objects of the Church'' and sec. 1 ``Religion of Scientology''. That section reads:

``To present and uphold the religion of Scientology as founded by the Church and as further developed by the Church as prescribed herein to the end that any person wishing to participate in its communion and fellowship may derive the greatest possible good of the spiritual awareness of his Beingness, Doingness and Knowingness.''

``Scientology'' is defined in para. (h) of sec. 2 of art. nine as:

``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.''

Section 2 is headed ``Doctrines of the Church'' and reads:

``To encourage religious faith and propagate the doctrines that Man's best evidence of God is the God he finds within himself, and 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 tranquillity to the State and thus the better order and survival to Man upon this Planet.''

Section 3 is entitled ``The Creed''. It is not necessary to set this out in full. It is introduced by the words ``To teach and expound the beliefs'' which are followed by twelve lettered paragraphs. Although there are in those paragraphs many references to God, there is no expression of belief in God. The remaining sections of art. two are all expressed as objects. Section 4, entitled ``Religious Unity'' reads:

``To expound the essential unity of all religions and religious faith and the existence of a single Supreme Superhuman Power.''

Section 5 refers to affiliation with the Mother Church which is defined as ``the Church of American Science of Camden in the State of New Jersey in the United States of America as founded by L. Ron Hubbard author of Scientology and the Bible ''.

Section 6 proclaims the intention of co-operating with the:

``Church of Scientology of California incorporated at Los Angeles in the State of California in the United States of America and the Church of Scientology of California in England registered at East Grinstead in the County of Sussex England and any other bodies which seek to achieve similar objects to those set out herein.''

Section 7 provides for the establishment of schools and other institutions to encourage the learning, study and practice of the faith of scientology. Section 8 is concerned with the study of comparative religion, philosophy and science. Section 9 is

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concerned with a retirement fund for ministers and sec. 10 with raising funds for carrying further the mission of the church. Section 11 deals with the provision of scholarships for members of the Church.

Article three is entitled ``Administration''. Section 1 provides that the business, property, activities and affairs of the Church are to be managed by a Board of Trustees and sec. 2 deals with the filling of vacancies in the Board. Section 3 prescribes the powers of the Board of Trustees. It is unnecessary to refer to these in detail. Section 4 provides for the selection of a President who is to hold office until death or resignation. He is to be the chief executive officer, the Spiritual Head of the Church and final interpreter of the doctrine, ethics and creed of the Church. Section 5 deals with the Vice-President and Resident Director. Section 6 provides for a Secretary and for his functions. Section 7 provides for a Treasurer and sec. 8 for an Administrator.

Article four provides for an Advisory Council consisting of the office bearers and two others, one of whom is to be an ordained minister.

Article five establishes a Ministerial Guild composed of those ordained Ministers of the Church who are resident in Australia and those who have been ordained in Australia.

Article six deals with the establishment of institutions such as schools and art. seven requires the Board of Trustees to establish such subordinate churches as it deems necessary for the propagation of the faith.

Article eight requires the President to appoint a Trial Board composed of three ordained ministers to give an opinion on any allegations against a member of the Church.

Article nine contains in sec. 1 a provision familiar to lawyers, viz. ``words imparting (sic) the singular shall include the plural and vice versa and words imparting (sic) the masculine gender shall include the feminine gender''. Section 2 contains particular definitions said to assist in the interpretation of this Constitution and General Rules. In addition to the definitions already set out it includes the following statement:

``The Constitution and General Rules means the Constitution and Rules of the Church of Scientology of California in Australia, as amended.''

This baffling provision was not explained.

The constitution is a very inexpertly drawn document, but little attention appears to have been paid to it at the hearing before Crockett J. In particular no attempt was made to explain the hierarchy or the interrelation of Trustees, President, Administrative Officers, Advisory Council, Ministerial Guild and Members. Instead it seems to have been assumed that the entitlement to an exemption from pay-roll tax must depend upon the answer to the question: is scientology a religion?

The final question, however, upon which the outcome of the appeal must depend is whether the appellant is a ``religious institution''. The expression seems hardly suitable to describe an association registered under the Companies Act as a foreign company. The word ``institution'' is defined in the Oxford English Dictionary as:

``An establishment, organization, or association, instituted for the promotion of some object, esp. one of public or general utility, religious, charitable, educational, etc., e.g. a church, school, college, hospital, asylum, reformatory, mission or the like; as a literary and philosophical institution, a deaf and dumb institution, the Royal National Life-boat Institution, the Royal Masonic Benevolent Institution (instituted 1798), the Railway Benevolent Institution, etc. The name is often popularly applied to the building appropriated to the work of a benevolent or educational institution.''

This definition and the historical examples given in the dictionary show that the word ``institution'' is more commonly applied to the foundation established to carry out the religious, charitable or educational objects than to the legal entity responsible for establishing that foundation. But there is no reason to give the word a narrow meaning in the Pay-roll Tax Act 1971 and it should I think be taken to be wide enough to cover a foreign company instituted for the promotion of one of the specified objects.

The objects for which the appellant was formed are contained in art. two of its constituent document, parts of which have

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already been set out. From that Article it appears that the appellant's principal object is the promotion of scientology and in this way the principal question upon which the appeal depends comes to be: is scientology a religion?

The word ``scientology'' which is not, so far as I have been able to discover, to be found in any reputable dictionary, is a neologism apparently invented shortly after the Second World War by a man named Lafayette Ronald Hubbard to describe a new philosophy. In one of the works produced in evidence the word is described, in disregard of etymology and the parts of speech, as ``the `study of knowledge'. Scio is knowing in the fullest sense of the word, and logos study''. (See p. 6 of Testing which bears the claim, copyright 1961 by L. Ron Hubbard.)

The definition just quoted is taken from one of the publications produced in evidence. In later works a slightly different derivation is claimed. About twenty ``scientology'' publications in all were produced and most of them were said to be the writings of L. Ron Hubbard. Copyright in most, if not all of them, is claimed by L. Ron Hubbard usually with the addition of a year, but it is to be noted that the publisher is invariably named as an enterprise which can be seen by the name to be associated with the author or with scientology, e.g. ``Hubbard Communications Office'', ``Scientology Publications Organization'', ``The Publications Organization World Wide (A branch of the Church of Scientology of California a non-profit corporation in U.S.A. Registered in England)''. There is often more than one year given for the claim for copyright but it is impossible to ascertain from the evidence whether successive editions of the works produced were in fact published in the years named and more importantly what differences there were between one edition and another. As both the witnesses called for the appellant claimed that there had been considerable evolution in the teachings of scientology, it seems likely that the differences may be considerable.

The works produced, though ostensibly written in the English language, will be found on examination to be couched in terms which are obscure, tautologous, ambiguous, and often ungrammatical. At times, passages are simply contradictory of other passages. 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 organisation to be trimmed to whatever advantage is sought or can be obtained. By way of example of an apparent contradiction reference may be made to the following. In No. 4 of vol. 3 of Testing (April 1961) it is said:

``The initials H.A.S.I. stand for the Hubbard Association of Scientologists International, the principal Scientology organization in the world. The H.A.S.I. is a non-profit, non-political and non-religious organization.''

(The emphasis is mine.)

The H.A.S.I. appears to have been an organisation which operated in Australia before the establishment here of any organisation calling itself the Church of Scientology. It was said that the first Church of Scientology was founded in California in 1954.

On the other hand, in The Scientology Religion for which copyright is claimed for every year separately from 1950 to 1974 inclusive the following passage appears:

``From the examples given of legal, scholastic and Dictionary attempts to define religion, it is no doubt the wise course to agree with Latham C.J. that it is difficult, if not impossible to devise a completely satisfactory definition.

If there is any one concept which distinguishes religion, it is the concept of `spirituality' as opposed to `materiality'.

A number of criteria can be ventured as characteristic of religions, so that any religion will satisfy at least some, though not necessarily all, of the criteria:

• 1. A belief or conviction concerning the Universe and Man's spiritual relationship to it.
• 2. A belief in the existence of a Supreme Being.
• 3. A doctrine concerning life and death and the existence of a hereafter, or the immortality of Man's soul.
• 4. Codes of conduct regarding Man's relationship to his fellow Man and/or the Supreme Being.

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• 5. Customs, practices and ceremonies relating to all the above.

It will be our submission that the religion of Scientology fulfils all these criteria, and is making an indispensable contribution to the community.''

One of the witnesses simply said that he did not agree with the passage quoted from Testing. It was also said that many of the books had been reviewed (in the sense, no doubt, of revised) because they had been earlier mistaken or misconstrued. For example, one work entitled The Creation of Human Ability, A Handbook for Scientologists, by L. Ron Hubbard, copyright claimed 1954 and reprinted 1962, 1965 and 1968 might, it was said, in 1980 give a false impression of what scientology was about. It was said that there had been much evolution. The work just referred to, in common with many of the earlier works produced in evidence, has on the fly-leaf at the beginning of the volume a page of printing fixed by adhesive, adorned by a symbol in the form of a cross with superimposed upon it, in the centre, a four-pointed star. There is no evidence as to when this symbol was first used. Nor was there any evidence as to when the adhesive page was first used, but it seems clear that it has in each case been affixed after first publication of the book in which it is found. The text of the adhesive page is as follows:

``TO THE READER:

Scientology is a religious philosophy containing pastoral counselling procedures intended to assist an individual to gain greater knowledge of self. The Mission of the Church of Scientology is a simple one - to help the individual achieve greater self-confidence and personal integrity, thereby enabling him to really trust and respect himself and his fellow man. The attainment of the benefits and goals of Scientology requires each individual's positive participation, as only through his own efforts can he achieve these.

This is part of the religious literature and works of the Founder of Scientology, L. Ron Hubbard. It is presented to the reader as part of the record of his personal research into Life, and should be construed only as a written report of such research and not as a statement of claims made by the Church or the author.

Scientology and its sub-study, Dianetics, as practiced by the Church, address only the spiritual side of Man. Although the Church, as are all churches, is free to engage in spiritual healing, it does not, as its primary goal is increased knowledge and personal integrity for all. For this reason, the Church does not wish to accept individuals who desire treatment of physical illness or insanity, but refers these to qualified specialists in other organizations who deal in these matters.

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.

We hope the reading of this book is only the first stage of a personal voyage of discovery into the positive and effective religion of Scientology.

THE BOARD OF DIRECTORS

Church of Scientology''

The disclaimer contained in the second paragraph and the claim in the third, that Scientology and Dianetics address only the spiritual side of Man, seem designed to counter any conclusion that might be drawn from the text of any of the books that scientology is not a religion. The disclaimer relating to physical illness was presumably inserted in order to counter some of the more extravagant claims made in the early literature.

In Advanced Procedure and Axioms by L. Ron Hubbard, said to date from 1951, the following axiom may be quoted:

``144. A counter-effort producing plus or minus randomity to record is recorded with an index of space and time as hidden as the remainder of its content.''

Many other similarly obscure statements might be quoted. When an explanation of the meaning of such a statement is sought, however, the explanation is commonly given in words which cannot be seen to be related to the text to be explained or which are equally unintelligible.

In these circumstances it seems to me that

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a heavy onus rests upon the appellant to substantiate the claim that scientology is a religion. In order to discharge that onus the appellant relied chiefly upon the work already referred to entitled The Scientology Religion. The object or one of the objects of that work would appear to be to prove that scientology is a religion. Indeed it is difficult to see any other reason for its publication. Part one is entitled ``What is a religion?'' After discussing dictionary, scholastic and legal definitions it concludes with the passage I have already quoted. Next is Part two entitled ``What is Scientology?'' The chapters in this part are headed: Aims, Background, Doctrine, Practices, Codes and Conducts, Body of Literature, Religious Organisation, Observance and Ceremony, The Ministry of the Church of Scientology. The Part, indeed the whole publication, is written in a highly tendentious manner and differs much from writings which can be shown by internal evidence to have been published earlier. The writer seeks to draw much from Eastern religions as well as from Christianity and the repetition of the words ``religion'' and ``religious'' is noticeable. The ceremonies of the Church are described with much emphasis on prayer, notwithstanding the fact that in Ceremonies of the Founding Church of Scientology published in 1959, the opening words are ``In a Scientology Church Service we do not use prayers''. The ceremonies described plainly derive much from orthodox or established religions. Reference is made to the creed of the Church but it is not set out. The following statement is included:

``Scientology is pan-denominational, non-sectarian, and accepts members of other faiths into its international community. It is therefore incumbent upon its ministers to accept the religious beliefs of others.''

The third part of the work is devoted to showing that by judicial decision, administrative decision and by others, scientology has been accepted in many parts of the world as a religion. There is no reference to any view held anywhere to the contrary. In particular there is no reference to the Psychological Practices Act 1965 (Vic.). In all, the work is reminiscent of Hamlet's Mother's comment on the Player Queen.

If one read only The Scientology Religion and the constitution of the appellant, there is, I think, little doubt that one would reach the conclusion that scientology is a religion. Indeed as I read Crockett J.'s reasons for judgment, his Honour was of that view. But his Honour was also of the view that, having investigated fully the history of the development of the cult, scientology, in relation to its religious pretensions, was no more than a sham. His Honour based this conclusion largely upon the dexterity with which the tenets of scientology and its ceremonies and practices were modified from time to time to bring it within the classification of a religion. Crockett J.'s judgment contains an account of the steps taken after the passing of the Psychological Practices Act to bring scientology within the classification of a religion. There was undoubtedly evidence before his Honour to justify that account and save in one or two minor matters of detail the account was not challenged before us.

One might perhaps have expected the appellant to concede that scientology had started as something other than a religion and to contend that it had by 1977 become a religion. But this was not the approach adopted. Instead the appellant contended that even the early teachings of scientology, which included assertions that it was non-religious, justified the conclusion that scientology was a religion within the modern definition of religion as accepted by the Courts and that the modern doctrines and practices of scientology clearly justified its acceptance as a religion, even on an older and more restricted test.

Crockett J. held that the claims now made to belief in the efficacy of prayer and adherence to a creed divinely inspired were bogus and no more than a mockery of religion. Scientology as now practised, his Honour said, is in reality the antithesis of religion. These conclusions may well be right and there is undoubtedly some basis for them in the evidence. Yet it seems to me that conclusions of that character, when applied to so amorphous a concept as religion, are difficult if not impossible to sustain without either forming an opinion upon the truth of the doctrines propounded or making an assessment of the sincerity with which the professed beliefs are held by the founder or

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leaders or adherents of the particular cult in question. Latham C.J. pointed out in
Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (1943) 67 C.L.R. 116 at p. 124 , ``It is not for a Court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character.'' Nor is it for a Court, in my opinion, to judge the truth of any particular religious belief, however grotesque, however absurd, however offensive it appears to be: cf.
Fulwood v. Clemmer (1962) 206 F. Supp. 370 at p. 373 where Matthews, District Judge, added: ``Whether one is right about his religion is not a subject of knowledge but only a matter of opinion.''

On the other hand I would acknowledge that a point must be reached where the Court is able to say that a so-called religion is no more than a mockery. Such a point was clearly reached in
United States v. Kuch (1968) 288 F. Supp. 439 where a defendant indicted for unlawfully obtaining and transferring marijuana and for the unlawful sale, delivery and possession of LSD contended that the laws under which she was prosecuted impinged upon her constitutional right to the free exercise of her religion. She claimed to be a Minister of the Neo-American Church incorporated in California in 1965. The head of the Church was a Chief Boo Hoo and members were evidently known as Boo Hoos. It was claimed that the religion involved the ingestion of psychedelic drugs. It is sufficient for present purposes to quote a short passage from the judgment of Gesell, District Judge, dismissing the defendant's contention. The learned Judge said (at pp. 444-445):

``Reading the so-called `Catechism and Handbook' of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a `martyrdom record' to reflect his arrests. The Church symbol is a three-eyed toad. Its bulletin is the `Divine Toad Sweat'. The Church key is, of course, the bottle opener. The official songs are `Puff, the Magic Dragon' and `Row, Row, Row Your Boat'. In short, the `Catechism and Handbook' is full of goofy nonsense, contradictions, and irreverent expressions. There is a conscious effort to assert in passing the attributes of religion but obviously only for tactical purposes.''

The impossibility of reaching a definition of religion which was regarded as universally satisfying has often been acknowledged. In the Jehovah's Witnesses' case, Latham C.J. said (at p. 123):

``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. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance. What is religion to one is superstition to another. Some religions are regarded as morally evil by adherents of other creeds. At all times there are many who agree with the reflective comment of the Roman poet - `Tantum religio potuit suadere malorum'.''

Reference may also be made to Sir James Fraser's Golden Bough. In the abridged edition (1954) this passage appears (at p. 50):

``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. All that a writer can do is first, to say clearly what he means by religion, and afterwards to employ the word consistently in that sense throughout his work. By religion, then, I

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understand a propitiation or conciliation of powers superior to man which are believed to direct and control the course of nature and of human life. Thus defined, religion consists of two elements, a theoretical and a practical, namely, a belief in powers higher than man and an attempt to propitiate or please them.''

These considerations have generally led Courts to eschew the task of defining religion to any extent greater than is necessary for the particular task in hand. The wisdom of such a course is obvious. So in
R. v. Registrar-General ; ex parte Segerdal (1970) 1 Q.B. 430 ; (1970) 2 Q.B. 697 where the question was whether a building used by the Church of Scientology in England was a place of meeting for religious worship, the Court in holding that it was not, concentrated upon the word ``worship'' rather than decided that scientology was not a religion.

The appellant relied heavily upon a number of decisions of Courts in the United States and in particular upon Malnak v. Yogi (1979) 592 F. 2d 197, a decision of the United States Court of Appeals for the Third Circuit. The question in that case was whether the teaching of a course called the ``Science of Creative Intelligence - Transcendental Meditation'' (which is referred to as SCI/TM) constituted an establishment of religion in violation of the first amendment of the United States Constitution. The Court unanimously held that it did. But it was upon the separate concurring opinion of Adams, Circuit Judge, rather than upon the opinion of the Court, that the appellant chiefly relied. In the opinion of Judge Adams the modern approach of the United States Courts to the question whether a given set of ideas constitutes a religion is to look:

``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'.

But it is one thing to conclude `by analogy' that a particular group or cluster of ideas is religious; it is quite another to explain exactly what indicia are to be looked to in making such an analogy and justifying it. There appear to be three useful indicia that are basic to our traditional religions and that are themselves related to the values that undergrid the first amendment.

The first and most important of these indicia is the nature of the ideas in question. That means that a Court must, at least to a degree, examine the content of the supposed religion, not to determine its truth or falsity, or whether it is schismatic or orthodox, but to determine whether the subject matters it comprehends is consistent with the assertion that it is, or is not, a religion. Thus the Court was able to remark in Founding Church of Scientology:

• `It might be possible to show that a self-proclaimed religion was merely a commercial enterprise, without the underlying theories of man's nature or his place in the Universe which characterize recognised religions. ' 409 F. 2d at p. 1160. (Emphasis supplied.)

Similarly, one of the conscientious objectors whose appeal was coupled with Seeger, submitted a long memorandum, noted by the Court, in which he defined religion as the `sum and essence of one's basic attitudes to the fundamental problems of human existence'. 380 U.S. at p. 168; 85 S. Ct. at p. 855.

Expectation that religious ideas should address fundamental 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. His thoughts have been influential both with Courts and commentators. Nor is it difficult to see why this philosophy would prove attractive in the American constitutional framework. 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' (380 U.S. at p. 184; 85 S. Ct. at p. 850) and important to the believer. They are his ultimate concerns. As such, they are to be carefully

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guarded from governmental interference, and never converted into official government doctrine. The first amendment demonstrates a specific solicitude for religion because religious ideas are in many ways more important than other ideas. New and different ways of meeting those concerns are entitled to the same sort of treatment as the traditional forms.

Thus, the `ultimate' nature of the ideas presented is the most important and convincing evidence that they should be treated as religious. Certain isolated answers to `ultimate' questions, however, are not necessarily `religious' answers, because they lack the element of comprehensiveness, the second of the three indicia. A religion is not generally confined to one question or one moral teaching; it has a broader scope. It lays claim to an ultimate and comprehensive `truth'. Thus the so-called `Big Bang' theory, an astronomical interpretation of the creation of the universe, may be said to answer an `ultimate' question, but it is not, by itself, a `religious' idea. Likewise, moral or patriotic views are not by themselves `religious', but if they are pressed as divine law or a part of a comprehensive belief-system that presents them as `truth', they might well rise to the religious level.

The component of comprehensiveness is particularly relevant in the context of state education. A science course may touch on many ultimate concerns, but it is unlikely to proffer a systematic series of answers to them that might begin to resemble a religion. St. Thomas Aquinas once defined theology by asserting,

• `... this science commands all the other sciences as the ruling science... This science uses for its service all the other sciences, as though its vassals...'

The teaching of isolated theories that might be thought to address `ultimate' questions is not the teaching of such a `ruling science'. When these theories are combined into a comprehensive belief system, however, the result may well become such a `ruling science' that overflows into other academic disciplines as the guiding idea of the student's pursuits. It is just such a `ruling science' that the establishment clause guards against.

A third element to consider in ascertaining whether a set of ideas should be classified as a religion is any formal, external, or surface signs that may be analogized to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organisation, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions. Of course, a religion may exist without any of these signs, so they are not determinative, at least by their absence, in resolving a question of definition. But they can be helpful in supporting a conclusion of religious status given the important role such ceremonies play in religious life.''

The argument proceeded to contend that the essential elements of scientology, principally ascertained in or from the publication already referred to entitled The Scientology Religion, clearly satisfied the three criteria. But the argument in my opinion overlooks the caveat contained on p. 210 of the report where Judge Adams says:

``Although these indicia will be helpful, they should not be thought of as a final `test' for religion. Defining religion is a sensitive and important legal duty. Flexibility and careful consideration of each belief system are needed. Still, it is important to have some objective guidelines in order to avoid ad hoc justice.''

I agree, with respect, that the indicia enunciated by Judge Adams are helpful, but it is necessary or desirable, in my opinion, to have regard to other indicia as well.

It is perhaps advisable at this point to state again the ultimate question for the Court which is whether the appellant is a religious institution within the meaning of sec. 10(b) of the Victorian Pay-roll Tax Act. In other words, the question is what Parliament meant by the words ``religious institution'' in that Act passed in 1971. But as I have already attempted to show, the answer largely depends upon the answer to the further question: is scientology a religion? In the context that further question must be taken to mean: is scientology to be regarded as a

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religion in Victoria? The best neutral expression which I am able to apply to scientology is a ``set of ideas''. The question, therefore, is whether this set of ideas constitutes a religion. To answer that question it is necessary to try to form an opinion as to what the set of ideas consists of. The question cannot be answered by looking simply at the ideas contained in The Scientology Religion. Clearly what a person says of a set of ideas cannot determine whether it constitutes a religion or not.

With those caveats in mind, I turn to the indicia by reference to which the answer to the question may be ascertained. I start with the three indicia specified by Judge Adams in Malnak v. Yogi, supra.

1. The nature of the ideas. This is perhaps the most important of all the indicia and in the case of scientology perhaps the most difficult. Once one rejects the clearly tendentious statements with which the evidence abounds, it is not easy to say compendiously of what the ideas consist. There is so much that is obscure, ambiguous, or incomprehensible. The more one looks at the early publications (i.e. publications before the time when it began to be asserted at any rate in Australia that scientology was a religion) the more strongly the conclusion appears that the ideas were not consistent with the assertion that scientology was a religion. But I do not think that the later documents should be rejected completely simply because in parts they are tendentious. I would not reject the possibility that a set of ideas, originally not constituting a religion, might be so modified by its founder or leaders or even its followers that it became entitled to be described as a religion, notwithstanding that the modification were cynically carried out to achieve some ulterior object. But clearly the tendentious expressions of new found doctrines and opinions must be entitled to less weight than those found elsewhere.

An example of the difficulty to which what was called the evolution of scientlogy leads is afforded by reference to God or to a Supreme Being. Initially the literature was at pains to point out that scientology was non-religious, demanded no belief and that people of all faiths used ( sic ) scientology. Later, as the set of ideas ``evolved'' the writings tended to draw upon non-theistic religions, such as Buddhism and other Eastern religions. In Scientology, The Fundamentals of Thought by L. Ron Hubbard (1976) it is said on p. 13 ``Scientology is that branch of psychology which treats of (embraces) human ability''. In The Scientology Religion it is said (at p. 21) that scientology fulfils the criterion of ``A belief in the existence of a ( sic ) Supreme Being''. In the viva voce evidence it was said by one witness that it is left to the individual to decide what form the Supreme Being will take. In these circumstances the questions which come to mind include (a) is scientology a theistic or non-theistic religion? (b) if theistic, is it monotheistic or polytheistic? I do not believe that any satisfactory answer can be given to these questions from the evidence. In these circumstances little weight can be placed on the assertion that in so far as belief in a Supreme Being is an indication that a set of ideas is religious scientology exhibits that indication.

In order to determine the nature of the set of ideas with which we are concerned, it seems not inappropriate to turn to one of the works in evidence to which I have just referred and which is entitled: Scientology, The Fundamentals of Thought. The dustcover describes it as ``The Basic Book of the Theory and Practice of Scientology for Beginners''. What it suggests is that scientology is primarily concerned with a branch of psychology.

The following quotations are taken from it.

``It is a precise and exact science, designed for an age of exact sciences.''

(p. 14.)

``It is also used by business and government leaders to establish or improve organisation.''

(p. 15.)

``The most fundamental idea in Scientology is called the CYCLE OF ACTION. CYCLE = a span of time with a beginning and an end = a section of the totality of time with a beginning and an end = in beginningless and endless time one can set out periods which do have a beginning and an end insofar as action is concerned. ACTION = motion or movement = an act = a consideration that motion has occurred.''

(pp. 18-19.)

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``THE EIGHTH DYNAMIC - is 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 number `8'. This can be called the INFINITY or GOD DYNAMIC.''

(p. 38.)

``Life is a game. A game consists of freedom, barriers and purposes. This is a scientific fact, not merely an observation.''

(p. 45.)

``Probably the greatest discovery of Scientology and its most forceful contribution to the knowledge of mankind has been the isolation, description and handling of the human spirit, accomplished in July, 1951, in Phoenix, Arizona. I established along scientific rather than religious or humanitarian lines that that thing which is the person, the personality, is separable from the body and the mind at will and without causing bodily death or mental derangement.''

(p. 54.)

``Scientology as a science is composed of many axioms (self-evident truths, as in geometry). There are some fifty-eight of these axioms in addition to the two hundred more axioms of Dianetics which preceded the Scientology axioms.''

(p. 71.)

The goal of scientology is expressed thus:

``The end object of Scientology is not the making into nothing of all of existence or the freeing of the individual of any and all traps everywhere. The goal of Scientology is the making of the individual capable of living a better life in his own estimation and with his fellows, and the playing of a better game.''

(p. 86.)

Apart from these passages there is much in the book that is extravagant and much that might be thought to be highly dangerous in the hands of the gullible. In making selections from the literature I am conscious of the fact that in other parts of the books there are statements to a somewhat different effect, but in the absence of credible explanation the appellant cannot complain that its doctrines are misunderstood. When difficulties were encountered, the evidence tended to resort to ambiguity and obscurity and there seemed to me to be an abundance of contradictions in the literature of scientology.

In the end the question to be answered under this heading is whether the nature of the set of ideas is such as to entitle them to be described as a religion. I find myself not persuaded that they are so entitled. I put the answer in that way because I regard the question as not free from difficulty and it is, of course, for the appellant to establish its entitlement. But surveying the evidence as a whole, not merely those parts of it which I have quoted, I am left with the impression that the ideas with which scientology deals are more concerned with psychology than with ultimate truth, that is to say, with psychology rather than with man's place in the universe, or with fundamental problems of human existence or, as it has been called, with the inscrutable riddle of human existence or with the meaning of life and death or with what one writer calls questions of ultimate concern. Nothing that I have read seems to me to tend to raise the ideas of scientology to a religious level. If, therefore, I were to stop at this point, I would conclude that I was not persuaded that scientology was entitled to the description of a religion. But it is necessary to examine also other indicia.

2. Comprehensiveness. As appears from the passage I have quoted from Malnak v. Yogi, supra this component is closely related to the nature of the ideas. I have already said that to my mind scientology is more concerned with psychology than with the questions of man's place in the universe with which one might expect a religion to deal. The ideas seem to me to stop short of providing answers, however tentative, to ultimate questions.

In another respect also the set of ideas which constitute scientology seem to me to be less than comprehensive and they are less than comprehensive in a particular area with which one would expect a religion to deal. They contain no complete or absolute moral code. Indeed there seems to me to be little in the writings of L. Ron Hubbard which lays down or suggests a guide to moral conduct. This deficiency may not be a fatal deficiency

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in a set of ideas claiming to be a religion, but it is an indication against the conclusion that the set of ideas is entitled to be so described.

On this ground also I am accordingly not persuaded that the appellant has shown that scientology is a religion.

3. The trappings. The use of the word ``trappings'' is no more than a convenient heading. It is intended to indicate an enquiry into whether the set of ideas involves adherence to formal ceremonies and services. Where such activities are conducted, provided that they are genuine, they may indicate the existence of religion, but on the other hand the mere adoption of certain trappings cannot convert a set of ideas which do not constitute a religion into one any more than the adoption of the trappings of a Court can convert an administrative tribunal into a Court. Cf.
Shell Co. of Australia Ltd. v. F.C. of T. (1930) 44 C.L.R. 530 at p. 543 .

In determining the weight to be attached to the adoption of the trappings of religion significance should, in my opinion, be attached to the time and circumstances of their adoption. Thus if one found that certain rituals which had grown out of primitive practices were adopted in order to give expression to the set of ideas in question, one might readily conclude that one was concerned with a religion. But where a set of ideas is developed and there is, as it were, superimposed upon the ideas forms or ceremonies resembling those of established religions, it may be possible to give little weight to their adoption. In theistic religions the ceremonies are usually associated with acts of propitiation but as I have already said I am not clear whether scientology claims to be a theistic or a non-theistic religion. Nor is it possible to ascertain from the material what is the purpose of a scientology ``Church Service'' (other than a naming service, a wedding service or a funeral service). There seem to be no elements of propitiation or propagation in any of the ceremonies.

It is clear from the evidence that forms and ceremonies resembling those of established religions have been superimposed upon the set of ideas originally propounded by L. Ron Hubbard and it is difficult to resist the conclusion that they have been superimposed for the purpose of obtaining whatever advantage may be obtained by designation as a religion. In the circumstances therefore I am unable, in deciding whether scientology is a religion, to give much weight to the adoption of the forms and ceremonies which the Church of Scientology has adopted.

Judged by the three indicia suggested in Malnak v. Yogi, supra, therefore, I would conclude that the appellant had not shown that scientology was entitled to be regarded as a religion. But there are in addition other indicia which may I think assist the Court in deciding whether the set of ideas constitutes a religion.

4. Public acceptance. I conceive that extensive public acceptance of a set of ideas as constituting a religion might be an indication that it was to be regarded as such by the Courts, but I do not think that such recognition as scientology has achieved in Australia carries the appellant very far. It is true that some administrative decisions in other States have given scientology some recognition. These are referred to in Crockett J.'s judgment and I shall not repeat them. His Honour also referred to some judicial and quasi-judicial decisions in favour of treating scientology as a religion. These are entitled to some weight in the appellant's favour. Yet by ``public acceptance'' I refer rather to wide public recognition as a religion, that is to say, recognition of a kind of which judicial notice might be taken. It is clear that no such acceptance exists in this case. Indeed the contrary, so far as Parliament is concerned, might be said to be indicated by the Psychological Practices Act 1965. But whatever may be the true scope and operation of that Act, it could hardly be contended that the Parliament which passed it intended to embrace scientology as a religion in an Act passed only six years later and before the appellant obtained recognition as a ``recognized denomination'' under sec. 26 of the Marriage Act 1961-1965 (Cth.). In the result, therefore, 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. Further in the circumstances obtaining in Victoria, not very much weight can be given to the fact scientology has attained substantial recognition elsewhere, e.g. in the U.S.A.

5. Method of joining. Most, if not all, established or recognised religions seek not

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ATC 4211

only to retain their followers but also to add to them. Various means of doing so may be adopted but generally there will be involved persuasion that the set of ideas represents the true faith or true answers to questions of ultimate concern. There will also generally be involved acceptance of the set of ideas to the exclusion of others.

Although it was not very fully investigated at the trial it seems that it is not possible to become a ``believer'' in scientology in Victoria without becoming a member of the appellant. Section 2 of art. 1 of the constitution of the appellant suggests that anyone who accepts the objects of scientology may become a member of the cult and sec. 4 then requires him to pay the annual subscription which is to be not less than $5.00. This is hardly what one would expect to find as the method of becoming a practising believer and suggests rather the joining of a voluntary association devoted to objects contained in the constitution. A form of application for membership was produced. Copyright in it is claimed by L. Ron Hubbard and it was said in evidence that a person becomes a member when ``she has read the accepted rules by which that service would be delivered to her and that she agrees to that and wants it and at that point in time when she signs up''. The significance of the reference to the ``service delivered'' is that the service is provided for a fee.

The evidence did not suggest that the Church of Scientology customarily takes any steps to obtain ``converts'', although there are many indications of an attempt to ``sell'' scientology and its commercial products (about which I shall say something more under the next heading). It seems clearly possible on the evidence to embrace scientology whilst remaining an adherent of a recognised 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.

In my opinion the matters referred to in this paragraph point towards the conclusion that the appellant has failed to show that scientology is a religion.

6. Commercialism. The extent to which the set of ideas is put to commercial advantage may, I think, be an indication of whether the ideas constitute a religion. In the case of scientology the extent is considerable. I have already referred to the ``use'' of scientology by business and government. This was explained in the evidence as the sale of expertise in management and administration.

The appellant produced a Services Price List of over 60 ``services'' ranging in price from $60 for a Grammar Course to $1,310 for an Introspection Rundown. Not many of the services were explained but we were told that the initial ``kit'' was called ``Student Hat'' and cost $160. The sale of counselling or auditing may cost between $500 and $600. In some publications ways of obtaining a discount for initial membership are advertised.

There is a reference in the Price List to an E-meter, the use of which is made illegal by the Psychological Practices Act in the case of anyone who is not a registered psychologist or who does not have the consent of the Victorian Psychological Council. The E-meter is designed to register electrical resistance and is used during the mental processing of ``pre-clears'', i.e. initiates. It appears to work similarly to a ``lie-detector'' and to be essential in the auditing (mental processing) of ``pre-clears'', i.e. those not clear of aberrations. Some of the published works in evidence advertise E-meters for sale. In evidence it was said that it was only of any use in the hands of a trained minister. On the other hand, there is a book offered for sale entitled The Book Introducing the E-Meter which is described as ``Beginner's first familiarization with the use of the Hubbard Electrometer''. The E-meter is now described, with typical ambiguity, as a religious artefact.

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.

Drawing together all the indicia to which I have referred I am clearly of the opinion for the reasons I have given that the appellant has failed to show that Crockett J. was in error in holding that scientology was not a religion and that the appellant was not in the period 1st July 1975 to 30th June 1977 a

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religious institution. The appeal should accordingly fail.

Before parting with the case there are two further matters to which I should refer.

The first is that at an early stage of the hearing Brooking J. raised the question whether the appellant's claim to an exemption from pay-roll tax might be founded on an illegality in that it might be said that the appellant was acting contrary to the Psychological Practices Act. Although the point had not been taken before Crockett J. it was raised sufficiently early in the argument before us to enable counsel for the appellant to address us on the question. In the course of doing so he submitted, inter alia, that we should not entertain the point on the ground that it had not been relied upon in the Court below. Counsel for the Commissioner expressly declined to rely upon it. This placed the Court in a somewhat unsatisfactory position and may be said to illustrate the difficulties which follow from putting aside one element in an entire legal problem and seeking to obtain the decision of a Court on an artificial basis: see and compare
Australian Woollen Mills Pty. Ltd. v. The Commonwealth (1954) 92 C.L.R. 424 especially at p. 455 . However, as I am able to reach a conclusion that, for the reasons given, the appeal should be dismissed, it is unnecessary for me to consider the point raised by Brooking J. and dealt with in his Honour's judgment, a draft of which I have had the advantage of reading. But it is plain that if I had been of the opinion that the appellant was otherwise entitled to succeed, it would have been necessary for me to consider what course the Court should take in relation to the point raised by Brooking J. In the circumstances I expressly refrain from considering that question.

The second matter is the ground of appeal which complained that the learned trial Judge had wrongly rejected certain expert evidence which was tendered in affidavit form. The evidence was tendered to show that certain so-called ``experts'' thought that scientology was a religion. In my opinion, Crockett J. was entirely correct in rejecting the evidence: see
Clark v. Ryan (1960) 103 C.L.R. 486 . The question to be answered in the proceedings is a question of the meaning and application of an Act of Parliament and expert evidence is not admissible to assist in that task. Furthermore, nothing in the material shows that there is an organised branch of knowledge which enables a person to say whether a given set of ideas constitutes a religion or not. It is, however, unnecessary to consider this question in detail, for the evidence tendered would not, if received, affect the result. The evidence of the so-called experts that scientology is entitled to be treated as a religion does not assist the Court to answer the very question. Indeed it is not admissible for the purpose: see
Dahl v. Grice (1981) V.R. 513 at p. 522 per Gobbo J. Moreover, it is to be noticed that, consistently with the manner in which the appellant approaches the task of establishing that it is a religious institution, five out of the six experts were given only the following material upon which to base their opinions:

• 1. The Constitution and General Rules of the appellant.
• 2. The Church of Scientology: Background and Ceremonies.
• 3. The Scientology Religion.

The first of these documents has been referred to in detail. The other two works, which are in evidence, are of so tendentious a character as to render an opinion based upon them of very little weight. Some of the experts visited the appellant's premises and two testified to some further reading. One witness who swore that he had been actively involved in the study of religion for over ten years studied the documents above referred to and concluded on the basis thereof that the beliefs and practices of scientology clearly centre on and flow from a basic commitment to a supra-natural being, principal or entity. Having regard to all the other literature in evidence it is clear that such an opinion could not be given any significant weight.

In my opinion the appeal should be dismissed.