The Church of the New Faith v. Commissioner of Pay-roll Tax (Victoria).
Judges:Crockett J
Court:
Supreme Court of Victoria
Crockett J.
The Church of the New Faith Incorporated (the appellant) was incorporated in 1969 in South Australia under the provisions of the Associations Incorporation Act 1956-1965 of that State. At all material times the appellant has been registered as a foreign company in Victoria. The appellant's objects are the presentation, practice and propagation of scientology. Scientology was founded, and is the body of teachings promulgated, by Lafayette Ron Hubbard. The first so called scientology church was the Church of Scientology of California formed in February 1954. Its Articles expressed the purpose of the ``church'' as ``the propagation of the religious faith known as Scientology''. The scientology movement has its own doctrines and practices. They have been determined by the writings of its founder. The movement's literature is in the form of books, monographs and articles mainly written by Mr. Hubbard. The great majority of Mr. Hubbard's books were first published in the nineteen-fifties, although a number of his books has passed through many reprints up until recent times. Much of that literature was received into evidence in the proceedings before me and, in the course of the hearing, was subject to a detailed analysis.
There are, at present, approximately five to six thousand members of the scientology organisation in Victoria. In 1975 the appellant changed its name in the State of South Australia to ``Church of Scientology Incorporated''. That name change was subsequently duly recorded in the Companies Offices in the States of New South Wales and Western Australia where the appellant had also been registered as a foreign company. However, the Commissioner of Corporate Affairs in this State has refused registration in Victoria of a like change of name.
In Victoria wages paid or payable in this State are liable to a pay-roll tax. That liability is created by the Pay-roll Tax Act 1971. However, by sec. 10 of the Act wages liable to pay-roll tax do not include wages paid or payable -
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``(b) by a religious or public benevolent institution, or a public hospital.''
In June 1977, the appellant applied for exemption from liability to pay pay-roll tax on the ground that it was ``a religious institution''. The Commissioner of Pay-roll Tax refused to allow the exemption. Pay-roll was then assessed. An objection to the assessment was lodged. The objection was disallowed. The Commissioner was requested to treat the objection as an appeal. Accordingly, the matter was referred to this court for adjudication. There is no question but that the organisation in existence in Victoria and administered by the appellant is an institution. The short but by no means easy question is whether it is a religious institution.
An institution does not, of course, become religious in character simply because its members choose to call themselves, and the corporate body by which they are organised, a ``Church''; though, doubtless, the choice of such an appellation may afford some indication of the nature of the institution.
The difficulty is that scientologists have not always so described themselves. The predecessor to the ``Church'' in Australia prior to 1969 was the Hubbard Association of Scientologists International. Its aim was to promote scientology in this country before the Church of the New Faith was established and took over the Association's activities and membership. Despite the clerical connotation suggested by the title description of the ``founding'' body in the United States, the Association's title has a peculiarly secular ring about it.
There is another difficulty. Despite the express aim of the founding church being the propagation of ``the religious faith known as Scientology'', more than once there can be found in the organisation's literature unequivocal rejection of the notion that scientology is a religion. For example, in ``Testing'', a magazine published in Melbourne by the Hubbard Communication Office for the Hubbard Association of Scientologists International at a date not earlier than 1961, it is unequivocally asserted that ``H.A.S.I. is non-religious - it does not demand any belief or faith nor is it in conflict with faith. People of all faiths use Scientology''. As if to give emphasis to the claims of total secularity the magazine tells its readers with some particularity what scientology is and does. It is ``a precision science''. Indeed, the first ``precision science in the field of the humanities''. As such ``it improves a person's personality, intelligence, memory, ability, skill, happiness and success in life'' and it ``eradicates worries, problems, compulsions and repressions''. Furthermore, there can be found in none of Mr. Hubbard's publications written in the nineteen-fifties and early nineteen-sixties any claim that scientology was religious in content or intent.
Presumably, the professedly religious aims of the ``founding churches'' in the United States, as they are to be found in their respective Articles, are to be explained as no more than a cynical manipulation for advantage of the laws relating to financial immunity granted religious organisations in that country when scientology spread to the United States following the foundation by Mr. Hubbard (an American) in England in 1952 of the Hubbard Association of Scientologists International. The head-quarters of scientology were then, and apparently have since been, at Saint Hill Manor, Sussex. As such it is scientology's ``world wide research and communications centre''.
By the early nineteen-sixties, in Victoria, where scientology in Australia had seemingly flourished to the greatest extent, concern was being expressed that the organisation's practices might be positively harmful. At all events, in November 1963 the Victorian Government constituted a Board of Inquiry to enquire into, and report upon, scientology as known, carried on, practised and applied in this State. The Board reported in September 1965. Its report was highly critical of scientology. It found that its practices were evil and recommended legislation designed to control the practice of psychology which control, it was apparently thought, would serve to circumscribe those scientological practices considered to be harmful.
The Victorian Government responded to the recommendation. The result was the enactment in 1965 of the Psychological Practices Act. The Act set up the Victorian Psychological Council. The Council's responsibilities include the registering of, and
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the exercise of supervision over, those who practise psychology. Section 30(1) prohibits the use of an E-meter or other instrument which is represented as being able to detect or measure any emotional reaction. This section was clearly aimed specifically at scientologists. The E-meter (or electro-psychometer) is an important (and it seems the only) apparatus employed in scientology. It is an instrument designed to register electrical resistance and is used during the mental processing of ``preclears'', by which name initiates are known. This mental processing is referred to as ``auditing''. The E-meter appears to work similarly to a ``lie-detector''. It is an essential piece of equipment in the auditing of a ``preclear'' (one not cleared of ``aberrations''). Its use in scientology is thus indispensable.Then, sec. 31(1) provides that any person who demands or receives a fee ``in relation to the teaching, practice or application of scientology or who advertises or holds himself out as being willing to teach scientology shall be guilty of an offence...''. Subsection (2) defines scientology as meaning ``the system or purported system of the study of knowledge and human behaviour advocated in the writings of Lafayette Ronald Hubbard and disseminated by the Hubbard Association of Scientologists International, a company incorporated in the State of Arizona in the United States of America, and includes any system or purported system associated with or derived from the same and the system or purported system known as dianetics''. Mr. Hubbard's books on dianetics were the first in his very considerable literary output in the scientological field. They deal with ``the modern science of mental health'' and foreshadow the later and ``full promulgation of scientology''.
However, a significant exception to the inculpatory operation of these provisions is to be found in subsec. (3) and (4) of sec. 2 of the Act. They are as follows:
``(3) This Act does not apply to anything done by any person who is a priest or minister of a recognized religion in accordance with the usual practice of that religion.
(4) In sub-section (3) `recognized religion' means a religion any of whose priests ministers or members are as such authorised to celebrate marriages under the law of the Commonwealth relating to the celebration of marriages or any religion which is proclaimed by the Governor in Council by proclamation published in the Government Gazette to be a recognized religion for the purposes of this section.''
Whether or not scientology in 1965 was a religion, it is plain that its adherents - or many of them - embraced its teachings with a zeal akin to religious fervor. Thus, that they might wish not to suffer extinction would be understandable. The means to avoid that extinction were at hand and provided for in the Act itself. It was necessary only that scientology should become a religion. The history of scientology's treatment at the hands of the Parliament of Victoria rendered it scarcely likely that the Governor in Council would proclaim scientology to be a recognised religion. The Commonwealth Government might prove more amenable. But first, the organisation of scientology had to be (and in fact was) metamorphosed so that a recognisable semblance of what might be commonly thought to be the structure of a religious body was achieved. This involved a number of radical innovations. First of all there was the adoption of ecclesiastical trappings. The symbolism and outward appearances, not surprisingly in a society nominally adherent to, and certainly familiar with, the fundamentals of Christianity, took on many of the characteristics of a Christian denomination. Contemporaneously with this transformation the essentially secular philosophy in which scientology was embedded had to be, and was, re-interpreted (if not re-written) in terms of a theological philosophy which was construed as religious dogma and embellished by the adoption of a creed and services conventionally thought appropriate to, and demanded by, active participation in the observance of an undeniably recognised religion. Such services included Sunday ``worship'' and the ceremonies of naming, marriage and death.
The vast mass of Mr. Hubbard's literary output could not be re-written. Still less could it be destroyed. It was, and is, the manifesto of the system of beliefs and practices to which it gave birth. Members of
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the movement are expected to, and, apostates excepted, do, accord blind reverence to those written works. Accordingly, the task of interpreting afresh a whole body of written works had to be undertaken. It is this burden which those dedicated to the preservation of scientology have borne over about a decade from approximately 1965 to approximately 1975. The standard works of the nineteen-fifties, when reprinted, were enclosed in dust jackets on which sometimes the modern message (scientology is an ``applied religious philosophy'') was to be found. Prologues were sometimes added and often a gummed page was included as a frontispiece. These additions stressed the supposedly religious nature of the intellectual revelations to be found described in the book itself.The E-meter is now to be found described as a religious ``artifact'' used in ``the Church confessional''. In some of such additions - but never in the original text - can be read the claim that scientology is ``an applied religious philosophy and technology resolving problems of the spirit, life and thought''. Its use for the diagnosis, treatment or prevention of disease is often found to be expressly disclaimed. Criticism in the past had been levelled at the organisation's supposedly commercial nature. Whether or not it ever partook of the nature of a business enterprises, lest the suggestion that it did might seem inconsistent with the moral tenets of religion, in recent years its promoters described scientology as a ``non-profit corporation''.
The new books were published - notably The Scientology Religion, The Church of Scientology and The Church of Scientology: Background and Ceremonies. Each claims to be a print in 1973 or 1974, of prints copyrighted in favour of Lafayette Ron Hubbard, in various years retrospect (in two cases) to 1956 and (in the other) to 1959. Yet I am satisfied by the internal evidence of so much of the books as was put in evidence and the other testimony revealing the course which the development of scientology has taken during the past thirty years that prior to 1966 none of these books was published in the form in which it now is to be found. Each of these works is clearly intended to invest scientological teachings with a conceptual doctrine that is fundamentally religious and to dress up the practices and ceremonies in a manner designed to give verisimilitude to such doctrine by the use of symbolism and paraphenalia of a kind which people, at least in Western countries, have come to associate with participation in religious activity.
For this purpose some reliance could be, and has been, placed upon precedents published in 1959 as the Ceremonies of the Founding Church of Scientology. This booklet is an Americal publication. It sets out what are described as a ``Church Service'' and procedures for conducting weddings, Christenings (as they are there described in a somewhat grotesque parody of Christianity with which scientology has little or nothing in common) and funerals. There is also to be found the ``creed'' of the Church of Scientology. Recent publications have adopted these forms of services and the creed with little or no alteration. However, the implication appears irresistible that the American booklet was brought into being to support the incorporation in the United States of scientology as a church. But quite clearly those services and the creed played absolutely no part in the teaching or practice of scientology until the late nineteen-sixties.
Scientology has its institutions largely, although it seems not entirely, in the English speaking countries. I greatly doubt that until 1966 any scientologist outside the United States (and very probably not even there) had heard of, still less participated in, any of the ceremonies set out in the 1959 booklet or had heard of, still less acknowledged adherence to, the creed. The probability is 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. With the Bill of Rights bestowing what has historically been regarded as a cherished guarantee of religious freedom the masquerade in that country might be thought to have been beneficially possible. See Wynes Legislative Executive and Judicial Powers in Australia 5th Ed. pp. 133-4. Elsewhere, however, the effort to emulate the American charade with its risk of non-success might have been thought to be not worthwhile. Moreover, until 1965 the unhindered flourishing of the organisation required no such attempt to be made. However, whatever may have been
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responsible for the employment of the procedures adopted in the United States, it is abundantly plain that at no time before 1965 was the scientology movement in Australia an organisation that presented any of the manifestations conventionally associated with a religious instiution. Whether scientology nonetheless should properly be held to have been a religion at that time (and, of course, subsequently) will, in due course, have to be considered.In the decade of re-interpretation to which I have referred, in addition to the resurrection from the United States of the ceremonies and creed, there occurred the adoption of a number of external phenomena that I am satisfied was designed from its obvious likeness to the practice of the Christian faith to enhance the illusion sought to be created. A class of members, being those who had studied for and completed (and paid for) the course in auditing (counselling preclears) and a ministers' course, was appointed ``ministers'' or ``chaplains'' of the ``church''. The appointment was marked by an ``ordination''. The premises or room in which they audited or ``conducted a service'' became a ``chapel''. Their garb (at least in the case of males) was indistiguishable from that of a Christian priest or minister. The symbol adopted, and to be found conspicuously printed in or on the new publications and worn by ministers as a pectoral adornment, bears a striking similarity to the Christian crucifix.
Now, it is not possible to say that this massive transformation - which seems to have occurred in all the countries in which scientology is to be found practised and to have been master-minded from the headquarters at Saint Hill Manor - was undertaken in order to take advantage of sec. 2 subsec. (3) and (4) of the Victorian Psychological Practices Act. Indeed, almost certainly it was not. But the Victorian Act in legislatively proscribing the practices of scientology either drove it underground or, more probably drove it into other States. Its leaders would be justified in concluding that other legislatures might soon adopt the Victorian measures - as in fact they did, although, in the event, not all of such enactments were to prove permanent. After all, the Victorian Act was prompted by a Board of Enquiry 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. The report gained publicity in countries and States where the organisation was entrenched.
What better method to avoid destruction than to simulate, so as to become accepted as, a religion. Doubtless the prospect of such a ploy becoming successful would be the greater in the English-speaking countries where the need publicly and politically to acknowledge religious tolerance has itself been - at least relatively recently - an act of faith. After all the United States has its Bill of Rights (and see the First and Fourteenth Amendments) and the Commonwealth has sec. 116 of the Constitution. By that provision the Commonwealth is prevented (inter alia) from making any law for prohibiting the free exercise of any religion. Whilst there is no such prohibition east upon State legislatures, possibly that provision was responsible for the enactment of sec. 2(3) and (4) of the Victorian Act. Compare sec. 109 of the Constitution. Moreover, those that need the protection so guaranteed are not the large and well-established religions. They can take care of themselves. It is the minority, and particularly the unpopular, religion for which the constitutional protection in reality exists (see per Latham C.J. in
Adelaide Co. of Jehovah's Witnesses Inc. v. The Commonwealth (1943) 67 C.L.R. 116 at p. 124) and on behalf of which the Courts should be astute to ensure that the guaranteed freedom is not illusory.
All the leaders of the scientology movement must be taken to have known. So the temptation to present the appearance of a religious institution by distortion of the organisation's principles so as to allow them to assume a credible semblance of theological dogma and by adoption or invention of a matching evangelical mission must have been great. In my opinion the evidence demonstrates that in succumbing (as I am satisfied it did) to that temptation that is precisely the dissimulation that the appellant (as part of a total international transformation) sought to achieve. Of itself the deliberate reconstruction of the aims and form of the organisation may not establish
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conclusively that the principles taught to, and the beliefs held by, adherents are not properly to be characterised as religious. However, if it be demonstrated, as I believe it has been, that the ecclesiastical appearance now assumed by the organisation is no more than colourable in order to serve an ulterior purpose, then it may be difficult (though not impossible for the reason to which I shall shortly refer) to credit the founder and those who have worked with, or for, him so to dissemble with the possession of any sincerely held belief in the religious nature of the institution. They and their disciples seek to explain the manifest changes of the past fourteen years on the ground that they are evolutionary only. The original writings express eternal truth. But continued study of them reveals new meanings and interpretations. The divine nature of the precepts there to be found has only recently been revealed so that they have now taken on a holy or sacred meaning. These operate as the foundation of a faith on which can be, and has been, erected a system of teaching and for the adoption of ceremonies that serve validly to designate scientology as a religion. This explanation I find untenable.However, whether scientology as it is now practised by those who were not party to the deception and whose belief in, and adherence to, the principles of scientology is undoubtedly genuine can on that very account be said to be a religious institution also remains to be determined. Again, the spurious nature of its claims to recognition will itself serve to throw much light on the answer to this question.
Some aid in finding answers to these questions may be gained from what is said to be the criteria by which the existence of a religion is judged and whether the tenets of scientology conform to those criteria, also requires some examination. Furthermore, assistance may be derived from what others have had to say on the question. The opportunities for courts and public officials to rule on the matter have not been infrequent as scientology, as early as 1967 when the transformation process had been put in train, sought to test the efficacy of its manoeuvres.
The matter arose in this way: Application was made in 1967 in England for the registration of the Chapel at Saint Hill Manor as a place of meeting for religious worship. Upon registration, certain financial advantages accrue. The Registrar General, not being satisfied that the chapel was used for religious worship, refused to grant the application. One Segerdal, a minister of the Church of Scientology and acting Chaplain of the Chapel, and the Church of Scientology of California (which had a registered office in England) sought an order of mandamus directing the Registrar General to record the Chapel as a place of meeting for religious worship. The Divisional Court before which the application came dismissed the application.
R. v. Registrar General ex parte Segerdal (1970) 1 Q.B. 430. Ashworth J., who delivered the judgment of the court, held that for worship to take place there had to be a worshipper and an object of his worship and that no worship as so defined took place. This conclusion was dictated partly by reason of the booklet, Ceremonies of the Founding Church of Scientology, expressly disclaiming the use of prayers at a Church Service and partly by reason of the absence in the creed of any express belief in God or any other deity.
It was thought unnecessary to decide whether the ceremonies that did take place were religious in character as there was not in any event any activity that could be described as worship. However, his Lordship thought that on the evidence before him it was difficult to conclude that scientology was a religion. That evidence consisted of the booklet to which I have referred and another entitled Scientology and the Bible (which is also in evidence on the present appeal) and Mr. Segerdal's affidavit. The affidavit made reference to innovations that have at least a superficial religious character. His Lordship was struck - and it would appear unimpressed - by this inconsistency between the material to be found in the affidavit and the contents of the booklets.
The matter was taken on appeal to the Court of Appeal ((1970) 2 Q.B. 697). The appeal was dismissed. The reasons for reaching that decision varied somewhat. Lord Denning thought that the expressions ``religion'' and ``worship'' ought not to be looked at separately. The Master of the Rolls expressed his views in these words at p. 707:
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``We have had much discussion on the meaning of the word `religion' and of the word `worship', taken separately, but I think we should take the combined phrase, `place of meeting for religious worship' as used in the statute of 1855. It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words `place of meeting for religious worship' is that it should be a place for the worship of God. I am sure that would be the meaning attached by those who framed this legislation of 1855.
Turning to the creed of the Church of Scientology, I must say that it seems to me to be more a philosophy of the existence of man or of life, rather than a religion. Religious worship means reverence or veneration of God or of a Supreme Being. I do not find any such reverence or veneration in the creed of this church, or, indeed, in the affidavit of Mr. Segerdal. There is considerable stress on the spirit of man. The adherents of this philosophy believe that man's spirit is everlasting and moves from one human frame to another; but still, so far as I can see, it is the spirit of man and not of God. When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God.
This is borne out by the opening words of the book of ceremonies: It says, at p. 7:
- `In a Scientology Church Service we do not use prayers, attitudes of piety, or threats of damnation. We use the facts, the truths, the understandings that have been discovered in the science of Scientology.'
That seems to me to express the real attitude of this group. When Mr. Segerdal in his affidavit uses the word `prayer' he does not use it in its proper sense, that is, intercession to God. When the creed uses the word `God' (as it does in two places) it does not use it in any religious sense. There is nothing which carries with it any idea of reverence or veneration of God. The `sample sermon' has no word of God in it at all. It says that man has a body, mind and spirit. It emphasises man and not God. It seems to me that God does not come into their scheme of things at all.''
On the other hand, the remaining members of the court (Winn and Buckley L.JJ.) decided the question on the narrow issue that the evidence did not establish the existence of any ``worship'' as that term is to be understood. They expressed no view as to whether scientology ought - on the evidence then before the court - be called a religion and Lord Denning's view on that matter might therefore be regarded as a minority opinion. Furthermore, it is plain from the report of the case that the material before the court was considerably less extensive than that introduced into evidence in the present appeal.
Again, with characteristic adaptability the organisation, obviously with the opinions of the Court of Appeal in mind, has subsequent to that decision introduced into its services reverential references to a deity referred to as the Author of the Universe or Supreme Being and whose place in dogma has by such reference been greatly elevated. Also, now to be found in the defined practices are the reading of the creed at a service and the use by the Chaplain of any one or more of a number of prayers with participation in their use by those present. And all this despite the fact that in an edition published as late as 1969 the very first words in Ceremonies of the Founding Church of Scientology are ``In a Scientology Church Service were do not use prayers''.
Indeed, so radical and far-reaching has the transformation been that in its Articles the appellant, when setting out the Objects of the Church, makes not one reference to the writings of Mr. Hubbard though other evidence described him as the spiritual leader of the Church. Instead it is stated that ``the
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Holy Book of the Church consists of a collection of the works of and about the Great Teachers''. They are left unidentified save that the ``work of St. Luke'' is to be included. And, for good measure, the ``Saints of the Church'' are defined as ``the messiahs and religious philosophers''. Yet Mrs. Allen, a minister of the Church, whose affidavit and the exhibits thereto formed the principal evidence of the appellant, swore that it was the works of Mr. Hubbard that are regarded as the literature of the religion of scientology. No mention in her evidence is to be found of St. Luke or any other ``Great Teacher''. Yet, to make confusion worse confounded, on each of Mr. Hubbard's publications sold in recent years there is a printed page or gummed leaf with a message that includes the following:``This is part of the religious literature and works of the Founder of Scientology, Mr. 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 this author.''
However, there can be no denying that the new image assiduously cultivated since the enactment of the Victorian legislation with its additional cosmetic changes since Segerdal's case has (at least in Australia) been singularly successful.
Under provisions identical with sec. 10(b) of the Victorian Pay-roll Tax Act exemptions from the payment of pay-roll tax have been granted in the remaining States in which scientology is practised, namely South Australia (14 January 1975), Western Australia (3 February 1975) and New South Wales (22 March 1977). A similar exemption was granted for the Australian Capital Territory by a Deputy Commissioner of Taxation who also ruled the appellant exempt from income tax under the provisions of the Commonwealth Income Tax Assessment Act.
But, what I would judge was deemed by the appellant the most significant favourable administrative decision was the ruling on 7 February 1973, of the then Attorney-General for Australia, Senator Lionel Murphy (as he then was) that the appellant be declared under sec. 26 of the Marriage Act 1961-1966 to be a ``recognised denomination''. Upon the declaration's being made, registered ministers of the appellant were authorised to act as marriage celebrants. Certain ``ministers'' of the appellant were so registered. Upon such registration's taking place any person holding the position of a minister in the scientology organisation in his performance of, or participation in, any of the practices of scientology had thereupon a virtual immunity from the proscriptions of the Victorian Act.
These rulings, however, were all administrative in nature. They afford little or no assistance in the determination of the present appeal. It is not known what material was put before the officer who made the decision or what enquiries he may have made in order to satisfy himself as to the appellant's eligibility for the exemption or recognition sought. And, of course, no reasons for the decision are given.
But there are also to be found in Australia judicial, or quasi-judicial decisions that touch on the matter. As early as December 1970 a Stipendiary Magistrate in Perth, for reasons fully expressed in a reserved judgment, granted an application to an applicant claiming to be a Minister of Religion for an exemption from military service under the National Service Act. The applicant claimed to be a minister attached to the Perth congregation of the Church of the New Faith. Unlike the Marriage Act. the National Service Act did not define the term ``Minister of Religion''. The Articles of the Church of the New Faith were produced to the court. The applicant deposed to his completion of training with the Hubbard Association of Scientology and subsequent ordination. He also described the nature of the service conducted which was as it is to be found described in the report of Segerdal's case in the Divisional Court save that in the intervening year the recitation of the creed and the reading of a prayer had been introduced to the service. Opposition to the application was based on the ground that the service as described, its objects and the beliefs of those participating in it did not amount to a religion as lexicographically defined and also on the ground that scientological practices were unlawful in the State of Western Australia. No attempt was undertaken to cast doubt on the bona fides
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of the organisation's holding itself out as a religion. The court in those circumstances, and relying upon some passages in the judgment of Latham C.J. in the Jehovah's Witnesses' case (supra) and in the judgment of Winn L.J. in Segerdal's case in the Court of Appeal, adopted a liberal interpretation of the term ``religion'' and concluded that the Church of the New Faith was a religious body and the applicant was a minister of that body. That conclusion having been reached the fact that it was subject to a State ban could scarcely render it any the less a religion.Then, the Victorian Town Planning Appeals Tribunal in a considered decision in 1973 shortly after, and largely because of, the proclamation of the Governor-General in Council declaring the Church of the New Faith to be a ``recognised denomination'' held the appellant entitled to a permit to use certain land as a ``Place of Worship''. That term is defined in the relevant Planning Ordinance as including ``buildings used primarily for the religious and social activity of a Church...''. The tribunal, again, appears to have accepted at face value the claim of the appellant that it was engaged in ``religious'' activities.
Finally, in 1978 the question again arose for judicial consideration - this time in the Supreme Court of Western Australia. In the course of a radio programme the defendant, in referring to the registration of the appellant as a Church said it (the registration) ``was only because it was a very smart way of evading taxes and making a lot of money''. The appellant commenced proceedings for damages for defamation. The action was tried by Brinsden J. and is reported as
Church of Scientology v. Anderson (1980) W.A.R. 71. However, the reasons of his Honour for finding, as he did, that the plaintiff's activities and beliefs amounted to a religion are not included in the published report. In point of fact, a copy of those reasons was made available to the court. From them it is to be learned that the judge found that the doctrines and practices of scientology as practised by the appellant justified recognition of scientology as a religion. The conclusion was founded upon the opinion to that effect of two ``experts'' - a Catholic and an Anglican priest. An attempt was made in the present appeal to rely on similar evidence. For the reasons I, gave at the time I so ruled, I held that the matter was not one appropriate for the reception of so-called expert evidence.
At all events, the witnesses in Anderson's case thought that in order to qualify as a religion a movement should contain three or four characteristics. These were stated to be ``a system of belief in some supreme being or beings or state of being, a form of ethical conduct, the notion of worship or prayer or meditation and also the banding together by a number of people to form a church or ecclesiastical organisation of some sort''. The two witnesses were shown the Constitution and General Rules of the appellant and the publication The Church of Scientology: Background and Ceremonies - both of which are in evidence in the present proceedings - and also a summary of the doctrines and practices of the appellant prepared by a Mr. Cockerill. In fact, the same Mr. Cockerill gave evidence in the present appeal and was extensively questioned about such matters. However, although the two expert witnesses were provided also with a bibliography of the main writings of Mr. Hubbard they did not, and were not asked to, read any of the books therein referred to. Brinsden J., in connection with such matters, remarked, ``I have no doubt that these three documents were ample material upon which the two experts would be able to learn of the doctrines and practices of the plaintiff''. With that conclusion, aided as I am by having given consideration to most of Mr. Hubbard's books and having been instructed in the history of the sect over the past thirty years, I must respectfully disagree.
Doubtless a reader of the three documents identified by the learned judge would learn of the pretended doctrines and practices of scientology. If one read nothing else about scientology, at all events nothing that was not written before 1970, it would be surprising if one reached any conclusion other than that scientology was a religious institution. After all it has in its post-1970 publications assiduously used every means possible so to present itself. Quite possibly if I were to accept as genuine the principles, beliefs and practices supposedly now subscribed to by the scientology organisation, then I, too, might agree readily enough that
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its institution was religious in character. It is this consideration which, I think, explains, or largely explains, the decisions favourable to the appellant during the past ten years. In no instance does it appear that the history of the development of the cult was investigated fully or at all.However, I am persuaded (at all events I have not been persuaded to the contrary by the appellant on whom the burden of persuasion rests) that scientology is not, subject to one reservation, a religious institution because it 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 paraphenalia, and participation in ceremonies, of conventional religion are no more than a mockery of religion. Thus scientology as now practised is in reality the antithesis of a religion. The very adroitness - and alacrity - with which the tenets or structure were from time to 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.
There may, however, for what I have described as a charade, be one acceptable explanation consistent with scientology's being treated as a religious institution; and this brings me to the reservation to which I referred. Was scientology as practised until 1965 properly describable as a religion? If it was, then it still is a religion. The veneer created by the adoption of the objects and aims and rites and symbols, all so obviously religious in their nature or appearances, have not altered, and could not alter, the fact that it is scientology as founded and formulated by Mr. Hubbard that is still practised by the appellant and is at the heart of all that to which the appellant aspires. If scientology in its unadulterated form is and always has been a religion, then who can blame its practitioners for adopting means to preserve themselves from persecution? Any religion worthy of the name has been persecuted and proscribed at some period or periods in its existence. To devise means to ensure the survival of a newly-emergent system of faith is also a familiar phenomenon in the history of any religion. Martyrdom and clandestine activity are no longer necessary - at least in most western countries. Freedom of religious worship is now a constitutional guarantee. If scientology is a religion the supreme irony is that, being unrecognised as such by certain authorities and courts, it has had to pretend to masquerade as what it really is in order to gain acceptance as a religious body. If that is what I should be satisfied has occurred then the chicanery of which it has been guilty should not operate adversely to it.
The question then is - is scientology as evolved by Mr. Hubbard and practised in its ``pure'' form until 1965 properly to be regarded as a religious institution? Much time during the appeal was taken up with evidence directed to, and discussion upon, this question. I do not propose to rehearse the material relating to the question. Certainly I would not be prepared to take any narrow view of what constitutes a religion. Latham C.J. took occasion in the Jehovah's Witnesses' case (supra) to make a number of observations on what undeniably is a highly sensitive subject. As they completely coincide with my own opinions, repetition of them is, I think, justified. The learned Chief Justice (at p. 123) said:
``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 statements 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 [of the Constitution] 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 property of any particular religious observance.
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What is religion to one is superstitution 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'''
and at p. 124:
``6. The scope of religion has varied very greatly during human history. Probably most Europeans would regard religion as necessarily involving some ideas or doctrines affecting the relation of man to a Supreme Being. But Buddhism, one of the great religions of the world, is considered by many authorities to involve no conception of a God. For example, Professor Gilbert Murray says: 'We must always remember that one of the chief religions of the world, Buddhism, has risen to great moral and intellectual heights without using the conception of God at all; in his stead it has Dharma, the Eternal Law.' - Five Stages of Greek Religion. ch. 1. On the other hand, almost any matter may become an element in religious belief or religious conduct. The wearing of particular clothes, the eating or non-eating of meat or other foods, the observance of ceremonies, not only in religious worship, but in the everyday life of the individual - all of these may become part of religion. Once upon a time all the operations of agriculture were controlled by religious precepts. Indeed, it is not an exaggeration to say that each person chooses the content of his own religion. It is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character.''
According to the teachings of Mr. Hubbard the existence of a Supreme Being is to be affirmed and life is to be looked at in the terms of eight dynamics. The first it self and the eighth is the Supreme Being. The person himself is not his body but a thetan - equivalent one might say to a soul or spirit. Man's immortality exists in the power of the thetan to undergo infinite reincarnations. The development of these propositions has involved the adoption of a large number of invented words and the formulation of equally large numbers of esoteric theories. Without prolonged tuition, if even then, it is difficult completely to understand all that has been written about scientology. It is not for me, of course, to pass any judgment on the correctness or otherwise of the doctrines of scientology. However, despite an occasional reference in Mr. Hubbard's books to a ``Supreme Being'', or ``Divine Being'' or God and the placement of the eighth dynamic at the pinnacle of man's awareness of the other dynamics, it does seem apparent, as Winn L.J. observed in Segerdal's case, that the doctrines of scientology are more concerned with ``the transmigration and education of thetans than they are with God in any shape or form or any concept of a divine superhuman, all powerful and controlling entity''. Moreover, that the concept of religion must have some restraints placed upon it was pointed out by Dillon J. when he said in ``In re South Place Ethical Society'', The Times, 19 June 1980:
``Religion is concerned with man's relation with God.... If reason led people not to accept Christianity or any other known religion but to believe instead in the qualities of truth, beauty and love their beliefs might be to them the equivalent of religion but viewed objectively they were not religion.''
Until comparatively recently, the civilized world was divided among seven great world religions. Each possessed its own sacred book of inspired scriptures. The empiricism of the 20th century, however, has seen numerous attempts to explain religion in psychological or existentialist or human or ethical terms. But, as religion is essentially a dynamic relation between man and a nonhuman or superhuman being, it can never dispense with a higher form of knowledge which is concerned not with the human subject but with the divine object. This is recognised in the primary definition to be found in all the standard works. The Shorter Oxford English and the New English Dictionaries describe religion as a ``Recognition on the part of man of some higher unseen power as having control of his destiny, and as being entitled to obedience, reverence and worship;...''. In Webster's New International Dictionary (2nd ed. 1935) the definition is ``the service and adoration of God or a god as expressed in forms of worship in obedience to divine commands, especially as found in accepted sacred writings or as declared by recognised teachers''. Chambers (New Revised Encyclopaedia, the 1966 edition) says that
ATC 4679
the word is generally used to describe ``man's relation to divine or superhuman powers and the various organised systems of belief and worship in which these relations have been expressed''. The Supreme Court of the United States inDavis v. Beason 133 U.S. 333 when considering the term ``religion'' as used in the First Amendment to the Constitution said of it that it ``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''.
The aims, objects and purposes of scientology were, I think, accurately summed up by its principal spokesman before the Victorian Board of Inquiry when he described them as being ``to increase the efficiency and well-being of the individual person, using those terms in their widest sense, and in so doing to increase the efficiency and well-being of society as a whole''. So defined it is, I think, immediately apparent that scientology at the time that statement was made could in no sense be regarded as a religion. Nor did it aspire to be so regarded. Indeed, the claim was expressly made that it was non-religious. The witness's reference to scientologists as being members of a ``religious fellowship'' could not weaken the validity of the published disclaimers.
Finally, it was contended by the appellant that, should I reach the conclusions that I have, the current organisation is one that outwardly meets the requirements of a religion by any definition and, notwithstanding that that effect was achieved by its being dressed up by those in authority for reasons that seemed good to those persons, there are many now who devoutly believe in the re-structured doctrines and, accordingly, scientology has, perhaps almost unintentionally, virtually overnight, become a genuine religion.
I cannot accept this argument. If that part of the newly-stated aims and beliefs designed to allow the organisation to gain a credibility that it does not warrant is a sham, it is no less a sham because there are others prepared to accept and act upon such aims and beliefs as though they were credible when they cannot see them for what they are. Gullibility cannot convert something from what it is to something which it is not.
In the result I have not been persuaded that the institution of scientology is religious in character. The appeal must therefore be dismissed.
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