Church of the New Faith v Commissioner for Pay-roll Tax

The "Constitution" of the applicant is in evidence. Its contents are appropriate to a religious organization. It refers to the applicant as "the Church" and provides that the applicant shall be comprised of persons admitted to membership "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 by their use of the Church hope to bring a greater tranquility to the State and better order and survival to Men upon this planet": Article One, section 2 and repeated in Article Two, section 2 below. The Constitution provides that a member may be "excommunicated from the Church" by expulsion for a number of reasons, including failure to pay dues or tithes, disobedience and having been "guilty of heresy" (Article One, section 3), and indicates that the funds of the applicant are to be applied essentially for what might be generally described as the purposes of Scientology. It defines "Scientology" as meaning "the teachings, doctrines and statements of faith set out in sections 1 to 4 of Article Two hereof ". Those sections of Article Two are as follows:

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.

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 tranquility to the State and thus the better order and survival to Man upon this Planet.

(a) That God works within Man his wonders to perform.

(b) That Man is his own soul, basically free and immortal but deluded by the flesh.

(c) That Man has a God given right to his own life, reason, beliefs, mode of thought and/or thinking and to free and open communication.

(d) That the human spirit is the only truly effective therapeutic agent available to Man.

(e) That civilization can endure only so long as both spiritual and material needs find place within its structure.

(f) That civilization is lost when God and the Spirit are forgotten by its leaders and its people.

(g) That Man and the Nations of Man carry with them their own salvation and teachings exist sufficient to effect it.

(h) That the Church exists to assist the strong and the weak, to suppress the wrongdoer and to champion the right and godly. Its mission is to carry to Man revelations and teachings and practices of the present and ages past and to assist him, his family and communities to live in greater peace and harmony.

(i) That it is within the practice, teachings and tenets of the Church for the healing of the sick and suffering to be accomplished by prayer and other mental or spiritual means without resort to drugs or material remedy.

(j) That the Holy Book of the Church consists of a collection of the works of and about the Great Teachers, including the work of St. Luke.

(k) That the Saints of the Church are the messiahs and religious philosophers.

(l) That the specific teachings of the Church concerning its Holy Book and its contributions made in more recent times on the Mind and Spirit are a result of scientific investigations concerning the human spirit and the physical universe.

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

Two members of the applicant gave evidence on its behalf. The first, Mrs. Elaine Isobel Allen, was "responsible for the administration of the affairs" of the applicant in Victoria. The second, Mr. Clayton Cockerill, was "a senior administrative officer" of the applicant in Australia. It is common ground that Mrs. Allen and Mr. Cockerill are among the half dozen leading figures in the organization of Scientology within Australia. Each described herself or himself as a "Minister of Religion" of the applicant.

The main affidavit sworn by Mrs. Allen contains some general information about the applicant and about the beliefs and activities of its members. Paragraph 4 reads as follows:

As appears from Article 2 of the constitution and general rules of the appellant the objects of the Church includes the object of presenting and upholding the religion of Scientology. The religion of Scientology was founded by Lafayette Ronald Hubbard, who is the spiritual leader of the adherents of the religion, including its adherents in Australia who are members of the appellant. Now produced and shown to me and marked with the letters "EIA4" is the work entitled The Scientology Religion by the said Lafayette Ronald Hubbard. The said work is regarded by the trustees, ministers and members of the appellant as authoritative and is adhered to by them in their conduct of the affairs of the appellant and in their conduct of the religion of Scientology in Victoria, insofar as they are able to do so. Insofar as the said book contains statement of fact, I believe the same to be true. Insofar as the same contains statements of belief, the said statements of belief are the beliefs upon which the appellant's activities are founded, and are beliefs which are adhered to by the trustees, the ministers and members of the appellant, in Victoria. Insofar as the said book contains statements of opinions of persons quoted in the said book, the same are as I verily believed, the opinions [sic] honestly and sincerely held by such persons. Mrs. Allen's statement to the effect that the work The Scientology Religion was regarded as authoritative by the trustees, ministers and members of the applicant and was adhered to by them in their conduct of the affairs of the applicant and in their conduct of Scientology in Victoria was not challenged expressly in cross examination nor was it controverted by other evidence. In essence, the case for the respondent was to point up internal inconsistencies in this and other materials written by Hubbard and to use such an analysis as a basis for challenging that their system of beliefs and practices constituted a genuine religion. Examination of The Scientology Religion discloses that it has been prepared with a conscious purpose of persuading the reader that Scientology is a religion. Plainly, it must be treated with some caution especially as regards matters, such as the repeated assertion that Scientology is a religion, on which it conflicts with statements to be found in other Scientology works. Since the evidence is, however, that this book is regarded as authoritative by Scientologists in Australia, particular attention needs to be paid to it. A number of matters, confirmed by reference to other material which is in evidence, emerge from it.

Prominent among Hubbard's theories which constitute the basis of Scientology are doctrines of reincarnation in human form and the immortality of what is called the "thetan" which is represented as being an external force or spirit controlling the human body. Scientology is represented as concerning "survival" not in terms of the body but in terms of the spirit: "the thrust of survival is away from death and towards immortality". The ultimate goal and central concern is the escape of the "thetan" or spirit from the bondage of the Matter, Energy, Space and Time ("M.E.S.T.") of the physical universe. Life is said to be viewed, in Scientology, in terms of "Eight Dynamics - self is the first dynamic, the Supreme Being is the eighth dynamic". Apart from the assertion that the Supreme Being constitutes the eighth "Dynamic", there is little attempt at definition of the Supreme Being: on the other hand, much of Scientology writing is concerned with what is described as "progress upward toward survival on higher levels" which is consistently said to be "progress as well toward God": see Science of Survival, Book II, p. 244; The Scientology Religion, p. 29. The system or conglomeration of ideas which is represented as constituting Scientology is presented as influencing the conduct and lives of those who accept them. Indeed, the "auditing" or "counselling" procedure to which initiates are subjected is plainly intended to produce permanent effects involving what some outsiders might see as brainwashing and disorientation. The practices of the applicant include a form of service built around "a sermon" on matters such as "what a person is - body, mind, spirit" and ceremonies for particular occasions, namely, naming, wedding and funeral. The model forms of the ceremonies for particular occasions include exhortations about conduct and intimations of immortality.

The material in evidence discloses that up until at least 1965 Hubbard had not, in his writings, described Scientology as a religion. Indeed, the notion that Scientology was a religion was emphatically rejected in some writings of scientologists. It would seem that the present day service and ceremonies, while described in detail in an American publication in 1959, were not celebrated in Australia before the late 1960's. During the 1970's there were obviously concerted efforts to portray Scientology as a religion. Hubbard's writings commenced to stress the religious nature of the ideas he professed. An adhesive page headed by an emblem incorporating a cross has been affixed to the fly leaf of previously published books. The printed material on this adhesive page refers to Scientology as a "religious philosophy", to the "Mission of the Church" and to the "positive and effective religion of Scientology" and describes Hubbard's writings as "religious" and an electrical device (the "E-Meter"), which is used in "auditing", as a "religious artifact". Those most actively concerned in the movement came to be called "ordained Ministers" or "Ministers of Religion" and began to wear conventional clerical garb and ornaments such as a clerical collar and the emblem of a cross.

There are two suggested explanations of the appearance in Scientology writings of assertions that Scientology is a religion and of the introduction of services and ceremonies as part of Scientology practices. The first is that there was an evolution in the system or conglomeration of ideas leading to a greater emphasis on the spiritual and that, in the conviction that Scientology had become a religion, it was thought appropriate to incorporate into it the type of practices which were ordinarily accepted as appropriate to a religion or religions in the communities where the numbers of scientologists were significant. The evidence of Mr. Cockerill and Mrs. Allen indicates that this accorded with their belief of what had occurred. The second suggested explanation is that the motivation of those responsible for the appearance of assertions that Scientology is a religion and for the introduction of a service, ceremonies and other external indicia of a religion was no more than a cynical desire to present Scientology as what it was not for such mundane purposes as acquiring the protection of constitutional guarantees of freedom of religion or obtaining exemption from the burden of taxing laws. It was this explanation which was accepted by the learned trial judge. In strong language - "sham", "bogus", "mockery", "masquerade", "pretensions" and "charade" - his Honour concluded: that the creed and services described in a 1959 booklet called Ceremonies of The Founding Church of Scientology which had been published in America "played absolutely no part in the teaching or practice of Scientology until the late nineteen sixties"; that "those so-called ceremonies were devised and published as a device to enable, with such attendant advantages as would thereby accrue, Scientology to be paraded as a church in the United States" and should properly be described as a "masquerade" and "charade"; that a Victorian Board of Inquiry Report "that was uncompromising in its denunciation of Scientology as a profoundly evil movement from which gullible - and the not so gullible - members of the community required protection" had "gained publicity in countries and states where the organization was entrenched"; that the leaders of the Scientology movement succumbed to the temptation to avoid "destruction" of the movement by simulating, so as to become accepted as, a religion; that "the ecclesiastical appearance now assumed by the organization is no more than colourable in order to serve an ulterior purpose"; and, ultimately, that Scientology

is, in relation to its religious pretensions, no more than a sham. The bogus claims to belief in the efficacy of prayer and to being adherent to a creed divinely inspired and also the calculated adoption of the paraphernalia, and participation in ceremonies, of conventional religion are no more than a mockery of religion. Thus scientology as now practiced is in reality the antithesis of a religion. The very adroitness - and alacrity - with which the tenets or structure were from time so cynically adapted to meet a deficiency thought to operate in detraction of the claim to classification as a religion serve to rob the movement of that sincerity and integrity that must be cardinal features of any religious faith [7] . 1. [1983] 1 V.R., at pp. 108-109.

Perusal of the whole of the evidence at first instance makes clear that, apart from some questions asked of Mr. Cockerill about his having acquiesced in being sworn on a Christian Bible, there was no suggestion made in the cross examination of Mrs. Allen and Mr. Cockerill that they were other than sincere in the beliefs they professed. Nor does the judgment of the learned trial judge contain any finding that any significant number of the more than 5,000 Victorian members of the applicant was other than genuine and sincere. To the contrary, his Honour mentioned the "zeal akin to religious fervour" with which the adherents of Scientology embraced its teachings and indicated acceptance of the proposition that "there are many now who devoutly believe in the re-structured doctrines". In the course of argument in this Court, senior counsel for the Commissioner disclaimed any suggestion that Mr. Cockerill or Mrs. Allen was other than sincere and conceded that, however mistaken, inconsistent, illogical and even harmful some may think those beliefs and practices to be, the great majority of the Australian members of the applicant are sincere and genuine in their acceptance of current Scientology writings and practices.

It was submitted on behalf of the applicant that there was no proper basis in the evidence for the strongly adverse findings of Crockett J. as to the sincerity of Hubbard and "those who have worked with, or for, him". In the view we take, it is neither necessary nor desirable to embark upon a consideration of that question. Once it is accepted that the applicant is an Australian organization of members who believe and follow the teachings and practices of Scientology as set forth in the current literature, it is not critical to the outcome of the present appeal that the members of the applicant in Victoria may be gullible or misguided or, indeed, that they may be or have been deliberately misled or exploited. That is not to deny that there are cases where what is put forward as being a religion cannot properly be so characterized for the reason that it is, in truth, no more than a parody of religion or a sham: the claimed religion of "Chief Boo Hoo" and the "Boo Hoos" in United States v. Kuch [8] provides an obvious example of such a parody. Nor is it to deny that there may be cases in which the fraud or hypocrisy of the founder and leader of a particular system of claimed beliefs and practices constitutes the straw that weighs the balance against characterization as a religion. It involves no more than the conclusion that in the present case, where one has an organization consisting of thousands of Australians who genuinely believe and follow the current writings and practices of Scientology, the question whether Scientology is a religion in Victoria falls to be answered by reference to the content and nature of those writings and practices and to the part Scientology plays in the lives of its adherents in Victoria rather than by reference to matters such as the gullibility of those adherents or the motives of those responsible for the content of current writings and the form of current practices. As we have noted, the approach of counsel for the Commissioner substantially follows this approach to the problem. The thrust of his submission is directed to establishing that those writings and practices viewed in their entirety fall short of constituting a religion.

The word "religion" is not susceptible of the type of definition which will enable the question whether a particular system of beliefs and practices is a religion to be determined by use of the syllogism of formal logic. As Young C.J. pointed out in the Full Court of the Supreme Court, that question will ordinarily fall to be determined by reference to a number of indicia of varying importance. Before attempting to identify what we see as the more important of those indicia, it is appropriate to consider whether it is possible to isolate any essential characteristic or characteristics without which one cannot have a religion.

In the Full Supreme Court, Kaye J. saw the essence of religion as the relationship between the individual adherent of the religion and his God. His Honour said [9] :

In my opinion, what distinguishes the belief or feelings with which a religion is concerned, and is fundamental to it, is the recognition of the existence of a Superior or Supernatural Being or Power with whom an individual has a personal relation and upon whom his own existence depends. The "Superior or Supernatural Being or Power" may be referred to by the individual by any of a number of names, including Allah, God, or Jehovah; but it is immaterial by what name the deity is known or called. Indeed, the Superior Being may be without name. Furthermore, it may not be a single identity; two or more gods may constitute the foundation of a man's belief. The belief or feeling of the individual in relation to the deity is a personal one; although he may recognize and respect that others have their own god, his relationship to his own deity is characterized by the belief that his is the true and only deity. Crockett J. [10] had adopted a similar approach at first instance when, after referring to a number of authorities and definitions, he indicated his agreement with the statement of the majority of the United States Supreme Court in Davis v. Beason [11] to the effect that "religion", as used in the First Amendment to the United States Constitution, "has reference to one's views of his relations to his Creator and to the obligations they impose of reverence for his being and character, and of obedience to his will". 1. [1983] 1 V.R., at p. 130. 2. [1983] 1 V.R., at p. 111. 3. (1890) 133 U.S. 333, at p. 342 [33 Law. Ed. 637, at p. 640].

In the context of a Western community, there is plainly force in the view that man's recognition of, and his relationship with, a personalized god constitutes the essence and central concern of religion. That is certainly true of the three great prophetic and monotheistic religions or groups of religions - Judaism, Christianity and Islam whose origins can be traced, directly or indirectly, to Israel and the Old Testament. One finds in Scientology writings some acknowledgment of the existence of a Supreme Being or God. If, however, it be an essential requirement of a religion that it be centred upon recognition of the existence of a Supreme Being with whom an individual has a personal relationship and upon whom the individual's existence depends, Scientology does not satisfy it. As has been said, the central concern of Scientology is the delivery of the "thetan" or spirit, which is immortal, from the bondage of the body with little attention being paid to the identification or definition of, let alone any personal relationship with, the Supreme Being. The same can, however, be said of at least two of the immanentist religions or groups of religions which can be traced, directly or indirectly, to India and the Upanishads. Buddhism is, broadly speaking, agnostic about a god while Theravada Buddhism and Jainism, at least in its original form, actually deny the existence of a personal creator. For that matter, classical Hinduism itself was more concerned with the non-personalized Brahman than with the recognition of, or man's relation with, any one or more of the Hindu gods.

The identification by Kaye J. of both a recognition of, and a personal relationship with, a superior or supernatural Being or Power as constituting the essence of religion accords, no doubt, with the understanding of many, perhaps most, Australians of what lies at the heart of their own particular religion and religious beliefs. For the purposes of ordinary statutory construction in present day Australia however, we are unable to accept, as an essential element of "a religion", a characteristic which is, even arguably, not possessed by one or more of what are generally accepted as leading religions.

In Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth [12] , Latham C.J. referred to the difficulty, if not the impossibility, of framing an acceptable definition of religion for the purposes of s. 116 of the Constitution and commented that it "is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character" [13] . Notwithstanding that there may be grounds for attributing a wider meaning to the word "religion" in the context of a constitutional guarantee against the establishment of a religion than in the context of a statutory exemption from a pay-roll tax, we are of the view that the above comment of Latham C.J., with which we respectfully agree, is in point in answering the question whether Scientology is a religion for the purposes of the present case. There is no single characteristic which can be laid down as constituting a formularized legal criterion, whether of inclusion or exclusion, of whether a particular system of ideas and practices constitutes a religion within a particular State of the Commonwealth. The most that can be done is to formulate the more important of the indicia or guidelines by reference to which that question falls to be answered. Those indicia must, in the view we take, be derived by empirical observation of accepted religions. They are liable to vary with changing social conditions and the relative importance of any particular one of them will vary from case to case. We briefly outline hereunder what we consider to be the more important of them. In so doing, we are conscious of the fact that we are, of necessity, venturing into a field which is more the domain of the student of comparative religion than that of the lawyer.

1. (1943) 67 C.L.R. 116, at pp. 123-126. 2. (1943) 67 C.L.R., at p. 124.

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 (cf. Malnak v. Yogi [14] ) 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 characterized 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 characterized 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. 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 characterization not involving any element of assessment of the utility, the intellectual quality, or the essential "Truth" or "worth" of tenets of the claimed religion.

The view which we have expressed of the meaning of "religion" accords broadly with the newer, more expansive, reading of that term that has been developed in the United States in recent decades. The story of that development is described by Circuit Judge Adams in his concurring opinion in Malnak v. Yogi. From his examination of three cases in particular, Torcaso v. Watkins [15] ,United States v. Seeger [16] , and Welsh v. United States [17] , his Honour concluded that the theistic formulation presumed to be applicable in the late nineteenth century cases (e.g. Davis v. Beason [18] ) is no longer sustainable. "Religion" is not confined to the relationship of man with his Creator, either as a matter of law or as a matter of theology. Yet its definition remains unclear.

The modern approach thus looks to the familiar religions as models in order to ascertain, by comparison, whether the new set of ideas or beliefs is confronting the same concerns, or serving the same purposes, as unquestioned and accepted "religions" [19] . Judge Adams identified three useful, though not essential, indicia by which to pursue the analogy to which he had referred. He described the first and most important of these indicia as "the nature of the ideas in question", whether they reflect those ultimate concerns which embody the fundamental problems of human existence. The second indicium is the element of comprehensiveness by which a set of ideas forms an intergrated belief-system as distinct from a treatment of one or a number of isolated questions. The third indicium relates to forms and ceremonies which are comparable to those adopted by accepted religions. In conclusion, his Honour said [20] : 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. 1. (1961) 367 U.S. 488 [6 Law. Ed. (2d) 982]. 2. (1965) 380 U.S. 163 [13 Law. Ed. (2d) 733]. 3. (1970) 398 U.S. 333 [26 Law. Ed. (2d) 308]. 4. (1890) 133 U.S. 333 [33 Law. Ed. 637]. 5. (1979) 592 F. (2d), at p. 207. 6. (1979) 592 F. (2d), at p. 210.

The conclusion to which we have ultimately come is that Scientology is, for relevant purposes, a religion. With due respect to Crockett J. and the members of the Full Supreme Court who reached a contrary conclusion, it seems to us that there are elements and characteristics of Scientology in Australia, as disclosed by the evidence, which cannot be denied. They bear repetition, with particular reference to the indicia which we have suggested. The essence of Scientology is a belief in reincarnation and concern with the passage of the "thetan" or the spirit or soul of man through eight "Dynamics" and the ultimate release of the "thetan" from the bondage of the body. The existence of the Supreme Being as the eighth "Dynamic" has been asserted since the early writings of Hubbard (see Science of Survival, Book I, pp. 60 and 98, Book II, pp. 244, 289). The ideas of Scientology satisfy the first two indicia: they involve belief in the supernatural and are concerned with man's place in the universe and his relation to things supernatural. Scientology in Australia also satisfies all of the other above-mentioned indicia. The adherents accept the tenets of Scientology as relevant to determining their beliefs, their moral standards and their way of life. They accept specific practices and participate in services and ceremonies which have extra-mundane significance. In Australia they are numbered in thousands, comprise an organized group and regard Scientology as a religion. It was submitted that Scientology lacked comprehensiveness particularly as regards the nature of, and man's relationship with, the Supreme Being. It has been seen, however, that that is something which Scientology shares with the great Indian religions from which some of its ideas would appear to have been derived. It was also submitted that the fact that Scientology does not insist that its adherents disavow other religious affiliations indicates that it is not a true religion. That, again, is something which could be said of a number of religions including Hinduism, some types of Buddhism and Shintoism. Again, reference was made to some unusual features of membership in the organisation and to the strong commercial emphasis in its practices. However incongruous or even offensive these features and this emphasis may seem to some of those outside its membership we cannot think that of themselves they can outweigh the other considerations to which we have referred.

As has been said, each case must be determined on the basis of the evidence adduced. With all respect to those who have seen the matter differently, we do not consider the present case, when approached on that basis, to be a borderline one. Regardless of whether the members of the applicant are gullible or misled or whether the practices of Scientology are harmful or objectionable, the evidence, in our view, establishes that Scientology must, for relevant purposes, be accepted as "a religion" in Victoria. That does not, of course, mean either that the practices of the applicant or its rules are beyond the control of the law of the State or that the applicant or its members are beyond its taxing powers.

It should be mentioned that the Commissioner disclaimed any reliance upon the proposition, which found favour with Brooking J. in the Full Supreme Court, that the applicant's claims to be a religious institution were based on illegal purposes and activities upon which it could not be permitted to rely to establish entitlement to the claimed exemption from pay-roll tax. The proposition was derived from certain provisions of the Psychological Practices Act 1965 Vict.. The Court was informed that the proposition had not been raised at first instance, that evidence in relation to it might well have been led if it had been raised and that, in any event, the statutory basis for it had since been removed by subsequent amendment to that Act. In the circumstances, it would seem preferable that we refrain from expressing any view in relation to it.

Special leave to appeal should be granted. The appeal should be allowed. The decision of the Commissioner should be set aside and the applicant's objection to the assessment of pay-roll tax should be allowed. The Commissioner should be ordered to pay the applicant's costs at first instance, in the Full Court of the Supreme Court of Victoria and in this Court.