Church of the New Faith v Commissioner for Pay-roll Tax - [1983] HCA 40 - HCA 1969 case summary — Zoe

CTHHCA

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

[1983] HCA 40

High Court of Australia|1969-01-31|Before: Deane JJ, Crockett J, Brennan J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1969-01-31

Before

Deane JJ, Crockett J, Brennan J

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

The applicant was incorporated in South Australia in 1969 under the name "The Church of the New Faith Incorporated" pursuant to the provisions of the Associations Incorporation Act 1956 S.A.. It subsequently changed its name to "The Church of Scientology Incorporated" but remains registered as a foreign company in Victoria under its original name. Its members are persons who accept and follow the writings of Lafayette Ronald Hubbard ("Hubbard"). Hubbard is an American who has acquired a substantial following in, inter alia, the United States, the United Kingdom and Australia. The estimate given of the number of his followers in Victoria was between 5,000 and 6,000. Evidence was given that total membership was about 150,000 in Australia and 8,000,000 throughout the world. The system or conglomeration, depending on one's viewpoint, of the ideas and practices contained in and advocated by his writings is known as "Scientology" and those who believe in those ideas and practices are known as "scientologists". Hubbard's first two Scientology books were Dianetics: The Modern Science of Mental Health which was published in 1950 and Science of Survival which was published in 1951. He has written many subsequent books.

[2]

Senior counsel for the Commissioner expressly conceded, for the purposes of the appeal, that, if Scientology is properly to be seen as a religion in Victoria, the applicant was, for relevant purposes, a "religious institution". The appeal was argued by both sides on the basis that the only real issue is whether Scientology is, for relevant purposes, a religion in Victoria. With some hesitation, we shall approach the matter on that basis. In so doing however, we should not be understood as indicating a concluded view that that basis is necessarily a completely sound one. In that regard, it is not apparent to us that it is clear beyond argument either that the reference to an "institution", in the context of s. 10(b), should not be construed as a reference to a particular establishment as distinct from the body of members, whether incorporated or unincorporated, of a particular religion or that the adjective "religious" in the phrase "religious institution" postulates an association between the relevant institution and what can be identified as a particular religion.

[21]

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.

[24]

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

[27]

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.

[39]

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.