Chapter 20: The Advancement of Religion
`The advancement of religion', in one form or another, has been part
of charity throughout the history of charity law. However, the scope of
what is understood to be a religion and what is included as the advancement
of religion has not been without controversy.
What constitutes a religion?
According to Dal Pont, `for the purposes of charity law, "religion",
like education, is defined broadly'.1
He also notes that:
The principal reason for the breadth of the definition of `religion'
is that it promotes religious liberty which is enshrined in the Australian
Constitution...and it is moreover consistent with the law's concern
with protecting minorities. The law's protection in this context is
not directed to safe-guarding the tenets of each religion - it
is accorded to preserve the dignity and freedom of persons to adhere
to the religion of their choice.2
(Author's emphasis)
Dal Pont also notes that the broad characterisation of `religion' requires
that boundaries need to be set to ensure that the privileges accorded
to charities are not conferred indiscriminately on any group who assert
their beliefs, practices and observances to be religious.
Importantly there must be a connection between a person's belief in
the supernatural and his or her conduct as a result of that belief.
Conduct such as worship, teaching, propagation or observance is religious
only if the motivation for engaging in it is religious.3
The most significant Australian authority on the question of what constitutes
a religion is the decision of the High Court of Australia in the Scientology
case which was decided in 1983.4
The High Court found Scientology to be a religion. On the question of
the current approach to the meaning of religion, the Scientology
case provides the best elucidation and it is worth a detailed consideration
here.
The initial decision, made by the Commissioner of Pay-Roll Tax in Victoria,
was that Scientology was not a religion. This decision was upheld in the
Supreme Court of Victoria and on appeal in the Full Court.5
The judgments against Scientology as a religion relied on the premise
that Scientology was a philosophy rather than a religion and that the
trappings of religion had only been acquired after its establishment in
order to give the organisation the semblance of a religion. This assertion
was rejected by the High Court. Instead, the High Court supported a broad
definition of religion, while cautioning against too broad a meaning.
Mason Acting CJ and Brennan J said:
The mantle of immunity would soon be in tatters if it were wrapped
around beliefs, practices and observances of every kind whenever a group
of adherents chose to call them a religion...A more objective criterion
is required...We therefore hold that, for the purposes of the law, the
criteria for 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.6
Wilson and Deane JJ noted that there was no single characteristic which
could be used to identify an organisation as constituting a religion and
that the most that could be done was to formulate a range of indicia gleaned
from past decisions. The indicia of religion as discussed by Wilson and
Deane JJ were: that the particular collection of ideas and/or practices
involved belief in the supernatural, that is, belief that reality extended
beyond that which was capable of perception by the senses; that the ideas
related to man's nature and place in the universe and his relations to
things supernatural; that the ideas were accepted by adherents as requiring
or encouraging them to observe particular practices having supernatural
significance; and that, however loosely-knit and varying in beliefs and
practices adherents might be, they constituted an identifiable group or
identifiable groups.7
Murphy J, while agreeing with the outcome proposed by the other judges,
expressed a broader view. He said that it was not the role of the courts
to pass judgement on the validity of the beliefs of the adherents of a
religion. He went on to explain his views about this. An analysis of what
he said reveals a significant difference between his approach and that
of the other members of the Court. We ourselves prefer the views of the
majority and accept them as determinative of what constitutes a religion
in Australia.
The judges in the Scientology case, in describing religion, went
beyond saying that an organisation would only be a religion if it centred
on a belief in a Supreme Being. Mason ACJ and Brennan J concluded that
what was required was a belief in a `supernatural Being, Thing or Principle'.
This marked a move from the trend to that date and the trend still in
Britain in favour of theism. Picarda notes that `the theistic theme has
always been well to the fore in definitions of religion in American cases.
And it has constituted the essence of modern pronouncements on religion
in the English courts.'8
There are only a small number of cases where the purpose of an organisation
was ruled not to constitute a religious purpose or not to be for the advancement
of religion. According to Dal Pont, the cases where an organisation is
considered not to be a religion tend to concern those organisations that
are considered not to be genuine:
A belief or practice cannot be properly characterised as a religion
if: first, it is no more than a parody of a religion or a sham; secondly,
it is contrary to laws that do not discriminate against religion generally,
against particular religions or against conduct of a kind that is characteristic
only of religion; or thirdly, it otherwise envisages or promotes conduct
that is inconsistent with the prevailing public policy, such as being
subversive of morality.9
In the Freethinkers10 case
and the Secular Society11 case,
the organisations were considered not to have religious purposes because
they worked against already established religions or against the idea
of religion. The Freethinkers case used the principle that an organisation
with a purpose of campaigning against another religion or religion per
se cannot itself be a religion. The organisation in this case was a society
whose beliefs included that `science provides for life and that materialism
can be relied upon in all phases of society'.12
The Freethinkers in America were also held not to be a religion.13
The objects of the organisation in the Secular Society case included
to `promote...the principle that human conduct should be based upon natural
knowledge, and not upon super-natural belief, and that human welfare in
this world is the proper end of all thought and action' and other objects
aimed at promoting a secular, non-religious government and education system
among other things. Most of the discussion in this case centred on the
apparent illegality, at that time in the UK, of an association established
with the object of subverting Christianity. Lord Parker stated that:
The abolition of religious tests, the disestablishment of the Church,
the secularisation of education, the alteration of the law touching
religion or marriage, or the observation of the Sabbath are purely political
objects. Equity has always refused to recognise such objects as charitable.14
Another point of contention concerns cases in which spiritual benefits
are restricted to family members or friends; here the common law also
says that the necessary public benefit does not arise. However, most cases
where the matter has gone against an organisation claiming to be charitable
for the advancement of religion have involved the question of a gift to
a trust where there has been some dispute as to whether the wording of
the deed could possibly allow non-charitable activities to occur and thus
render the trust void.
Committee's conclusions
The Committee affirms that `the advancement of religion' should continue
as a head of charity. It is clear that a large proportion of the population
have a need for spiritual sustenance. Organisations that have as their
dominant purpose the advancement of religion are for the public benefit
because they aim to satisfy the spiritual needs of the community. Religious
organisations satisfy these needs by providing systems of beliefs and
the means for learning about these beliefs and for putting them into practice.
The Committee sees no reason to move away from the decision made by the
High Court in the Scientology case, that a religion must have two
characteristics: belief in a supernatural Being, Thing or Principle; and
that there is an acceptance of canons of conduct that give effect to that
belief by some part of the community. No submission suggested a different
definition of religion.
The Committee considers that there is sufficient guidance within the
common law as it now stands to enable appropriate organisations to be
included within `the advancement of religion' head of charity.
Recommendation 14
That the definition of religion be based on the principles established
in the Scientology case, namely:
- belief in a supernatural Being, Thing or Principle; and
- acceptance and observance of canons of conduct in order to give
effect to that belief.
1 Dal Pont, G 2000, Charity Law in Australia
and New Zealand, Oxford University Press, Melbourne, p 148.
2 Dal Pont, p 149.
3 Dal Pont, p 149.
4 Church of New Faith v Commissioner of Pay-Roll
Tax (1983) 154 CLR 120.
5 Church of New Faith v Commissioner of Pay-Roll
Tax (1983) 1 VR 97.
6 (1983) 154 CLR 120 at 132, 137.
7 (1983) 154 CLR 120 at 174.
8 Picarda, H 1999, The law and practice relating
to charities, 3rd edition, Butterworths, London,
p 73.
9 Dal Pont, p 149.
10 Re Jones [1907] SALR 1990 (Incorporated Body
of Freethinkers of Australia).
11 Bowman v Secular Society Ltd [1917]
AC 406.
12 Picarda, p 83.
13 Old Colony Trust Co v Welch 25 F Supp
45 at 49 (1938), cited in Picarda, p 83.
14 Picarda, p 83 citing Bowman v Secular
Society Ltd [1917] AC 406.
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