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

Judges: Mason ACJ

Murphy J
Wilson J
Brennan J
Deane J

Court:
High Court

Judgment date: Judgment handed down 27 October 1983.

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Murphy J.

This turns on whether the Church of the New Faith, which was conceded to be an institution, is a ``religious institution'' and thus exempt from pay-roll taxation under the Pay-roll Tax Act 1971 (Vic.) sec. 10(b).

In Australia there are a great number of tax exemptions and other privileges for religious institutions. Under numerous Federal and State Acts, Regulations and Ordinances they are exempted from taxes imposed on the public generally. Examples are stamp duty, pay-roll tax, sales tax, local government rates, and the taxes on motor vehicle registration, hire purchase, insurance premiums, purchase and sale of marketable securities and financial transactions. Ministers of religion are exempted from military conscription. There are also special censorship and blasphemy laws against those who deride or attack religious beliefs, particularly those of the Christian religions. There are many other State and Federal laws which directly or indirectly subsidize or support religion.

Because religious status confers such financial and other advantages, the emergence of new religions is bound to be regarded with scepticism.

Scepticism and religion

Organized religion has always had sceptics, unbelievers, and outright opponents. Voltaire stated ``Nothing can be more contrary to religion and the clergy than reason and common sense'' ( Philosophical Dictionary 1764). Jefferson declared ``History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government'' ( The Writings of Thomas Jefferson vol. 6 (Washington ed. 1857) p. 267). Bakunin expressed opposition most strongly:

``All religions, with their gods, their demigods, and their prophets, their messiahs and their saints, were created by the credulous fancy of men who had not attained the full development and full possession of their faculties.''

( God and the State (1910) p. 12.)

Scepticism has been strong in Australia since European settlement. This has been attributed primarily to two causes. The progress of science displaced many European religious beliefs. Second, the conditions of settlement and the harsh environment encouraged a philosophy of life based on pragmatic individualism and mutual aid rather than adherence to the abstract dogma, indoctrination and rituals of the organized European religions.

Last century Marcus Clarke described religion as ``an active and general delusion'' ( Civilization Without Delusion (1880) p. 12). Henry Lawson, Joseph Furphy, Manning Clark, Patrick White, A.B. Facey and many other Australians have written sceptically about organized religion.

Religious freedom

Religious freedom is a fundamental theme of our society. That freedom has been asserted by men and women throughout history by resisting the attempts of government, through its legislative, executive or judicial branches, to define or impose beliefs or practices of religion. Whenever the legislature prescribes what religion is, or permits or requires the executive or the judiciary to determine what religion is, this poses a threat to religious freedom. Religious discrimination by officials or by Courts is unacceptable in a free society. The truth or falsity of religions is not the business of officials or the Courts. If each purported religion had to show that its doctrines were true, then all might fail. Administrators and Judges must resist the temptation to hold that groups or institutions are not religious because claimed religious beliefs or practices seem absurd, fraudulent, evil or novel; or because the group or institution is new, the number of adherents small, the leaders hypocrites, or because they seek to obtain the financial and other privileges which come with religious status. In the eyes of the law, religions are equal. There is no religious club with a monopoly of State privileges for its members. The policy of the law is ``one in, all in''.

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I have previously expressed the view that it is not within the judicial sphere to determine matters of religious doctrine and practice (
A.-G. (N.S.W.) v. Grant & Ors. (1976) 135 C.L.R. 587 and
A.-G. (Qld.) Ex Rel. Nye & Ors. v. Cathedral Church of Brisbane & Anor. (1977) 136 C.L.R. 353 at p. 377 ). The United States Supreme Court said ``The law knows no heresy, and is committed to the support of no dogma the establishment of no sect'' (
Watson v. Jones 80 U.S. 679 (13 Wall) (1871) at p. 728 ).

The onus is on each applicant for tax exemption to prove, on the civil standard, that it is entitled to the exemption - that it is, more likely than not, a religious institution. Because so many different beliefs or practices have been generally accepted as religious, any attempt to define religion exhaustively runs into difficulty. There is no single acceptable criterion, no essence of religion. As Chief Justice Latham said:

``... 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.''

(
Adelaide Company of Jehovah's Witnesses Inc. v. Commonwealth (1943) 67 C.L.R. 116 at p. 124 .)

The better approach is to state what is sufficient, even if not necessary, to bring a body which claims to be religious within the category. Some claims to be religious are not serious but merely a hoax (
United States v. Kuch 288 F. Supp. 439 (1968) ), but to reach this conclusion requires an extreme case. On this approach, any body which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious. Any body which claims to be religious and to believe in a supernatural being or beings, whether physical and visible, such as the sun or the stars, or a physical invisible god or spirit, or an abstract god or entity, is religious. For example, if a few followers of astrology were to found an institution based on the belief that their destinies were influenced or controlled by the stars, and that astrologers can, by reading the stars, divine these destinies, and if it claimed to be religious, it would be a religious institution. Any body which claims to be religious, and offers a way to find meaning and purpose in life, is religious. The Aboriginal religion of Australia and of other countries must be included. The list is not exhaustive; the categories of religion are not closed.

Origins of religion

Religion is undoubtedly an ancient phenomenon as is shown by archaeological evidence, as well as cave and escarpment carvings and paintings. The Australian Aboriginal religions are tens of thousands of years old. The Hindu religious texts, the Vedas, are said to date back six thousand years.

Religion has been explained as a development of magic and the need to rationalize the unknown. Natural events such as thunder, volcanic eruptions and floods, were viewed as the anger of a supernatural being or beings. Death, dreams and visions were also explained as involving divine and mysterious powers. Natural objects - the sun, moon, stars, mountains, volcanoes and trees were worshipped. It was easy for some people to delude others about their knowledge of these supernatural powers. Witchdoctors and priests claimed to have the ear of the gods. Consistent with the idea that the gods had human attributes and desired admiration and gifts, priests made idols of human shape. These were served by the witchdoctors or priests who gained great social power. As people became sceptical of the divinity of idols, invisible gods were invented. Tribal history and myths, ceremonies, rituals, sacred objects and writings, and compulsory or discretionary rules about behaviour, health and diet, were built into an elaborate structure of belief. The religion so created often buttressed or became consolidated with the civil power as with the Pontifex Maximus, the Pharaohs, the Aztecs, and many existing religions.

Another school views religion as the representation of a society's communal or collective consciousness and emphasizes the relationship between religious orientation and social structures.

Others have seen the origin of religion in deep-seated psychological impulses such as archetypes from the ``Collective Unconscious''. Jung explained that many religious dogmas, ceremonies and symbols

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were irrational because, like dreams, they were concerned with integrating the unconscious with the conscious mind, attempting ultimately to bring psychic ``wholeness'' to the personality. He wrote: ``The religious myth is one of man's greatest and most significant achievements, giving him the security and inner strength not to be crushed by the monstrousness of the universe'' ( Symbols of Transformation (1956) p. 231).

Church of the New Faith

The applicant church is an evolution of ``Scientology'' based on the teachings of Mr. Lafayette Ronald Hubbard who states that he drew inspiration from the Indian Vedas, Buddhism and the Tao-Te-Ching of Lao Tzu ( Phoenix Lectures (1968) pp. 1-35). Hubbard began publishing books on Scientology in the early 1950s in the United States. The first Scientology Church was the Church of Scientology of California founded 18 February 1954. Others have since been formed in many countries. Evidence was given that Scientology has some millions of members including about 150,000 in Australia (6,000 in Victoria).

As presented in this case (and these observations about Scientology are limited by what was presented and are necessarily extremely abbreviated), Scientology is based on ``Dianetics''. Central to ``Dianetics'' is the ``engram'', described as a ``complete recording down to the last accurate detail of every perception present in a moment of partial or full unconsciousness''. These ``engrams'' are produced from threats or aids to the survival of the organism called ``Dynamics''. These eight ``Dynamics'' are the urge to survival through: (1) self, (2) sex or children, (3) the group, (4) all mankind, (5) other life forms, (6) the physical universe and its components matter, energy, space and time, (7) spirit including ``the manifestations or the totality of awareness of awareness units, thetans, demons, ghosts, spirits, goblins and so forth'', (8) a Supreme Being, or ``Infinity''.

``Engrams'' produced from interaction with these ``Dynamics'' form a ``reservoir of data'' stored in the ``reactive'' or ``unconscious'' mind. Mr. Hubbard states that these ``engrams'' cause blockages in the personality: ``This is the mind which makes a man suppress his hopes, which holds his apathies, which gives him irresolution when he should act, and kills him before he has begun to live.'' Through a process of dialogue known as ``auditing'', these ``engrams'' are raised to a conscious level and worked out, till a person becomes a ``clear''. As a ``clear'' a person identifies with his or her spiritual aspect or ``soul'' - the ``thetan'', and breaks free of the constraints and problems of the physical universe of matter, energy, space and time (``M.E.S.T.'') which cause reincarnation.

Emphasizing such doctrines, the Hubbard Association of Scientologists International (as the organization was known in Australia in the early 1960s), called itself a ``precision science'' ( Testing Magazine (1961) p. 6) or ``a form of experimental psychology '' (Communication Magazine (1963) p. 5). Since then it has ``evolved''. This ``evolution'' appears outwardly in the traditional trappings of organized European religion - Sunday meetings, ordination of ministers, clerical garb, symbols resembling the crucifix, various other ceremonies and dogmas. Many of the Scientology books in evidence contained the following statement:

``Scientology is a religious philosophy containing pastoral counselling procedures intended to assist an individual to gain greater knowledge of self... The Hubbard Electrometer is a religious artifact used in the Church confessional. It, in itself, does nothing, and is used by Ministers only, to assist parishioners in locating areas of spiritual distress or travail.''

Article One, sec. 2 and Art. Two, sec. 2 of the appellant's constitution states:

``... 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 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.''

In September 1965 a Victorian Government Board of Enquiry reported that

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``Scientology is evil; its techniques evil; its practice a serious threat to the community, medically, morally and socially; and its adherents sadly deluded and often mentally ill... In a community which is nominally Christian, Hubbard's disparagement of religion is blasphemous and a further evil feature of scientology''. ( Report of the Board of Inquiry into Scientology (1965) pp. 1, 152.) This report led to the Psychological Practices Act 1965 (Vic.) which made the teaching of Scientology an offence (sec. 31(1)). However that Act did 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'' (sec. 2(3)). These provisions were repealed on 29 June 1982 ( Psychological Practices (Scientology) Act 1982 (Vic.)).

The Church was recognized as a religious denomination under sec. 26 of the Marriage Act 1961 on 15 February 1973 ( Commonwealth of Australia Gazette No. 20) and has been reproclaimed a number of times since, the last being 30 August 1983 ( Commonwealth of Australia Gazette No. G34). It is granted exemption as a religious institution from pay-roll tax in South Australia, Western Australia, New South Wales and the Australian Capital Territory.

The Supreme Court of Victoria

The Commissioner of Pay-roll Tax having rejected the applicant's claim for exemption, the Victorian Supreme Court both at first instance (Mr. Justice Crockett [80 ATC 4667]) and on appeal (Chief Justice Young, Justices Kaye and Brooking ) decided that the applicant was not a religious institution (
Church of the New Faith v. Commr. of Pay-roll Tax (Vic.) 82 ATC 4198 ; (1983) V.R. 97 ). Mr. Justice Brooking held against the applicant on the basis that it was illegal by reason of the Psychological Practices Act. In the Supreme Court and on this appeal the respondent declined to rely upon that reasoning, and it may be disregarded. The other Justices held against the applicant by applying unacceptable criteria.

Belief in God

Mr. Justice Crockett held that ``religion is essentially a dynamic relation between man and a non-human or superhuman being'' (80 ATC p. 4678; V.R. p. 111). He found that the doctrines of Scientology were not sufficiently concerned with such ``a divine superhuman, all powerful and controlling entity'' (80 ATC p. 4678; V.R. p. 110). Mr. Justice Kaye found absent an ``acknowledgement of a particular deity by all members of the Church... members of the Church might hold beliefs in, and have a personal relationship with, a different supernatural being'' (82 ATC p. 4217; V.R. p. 134).

Most religions have a god or gods as the object of worship or reverence. However, many of the great religions have no belief in god or a supreme being in the sense of a personal deity rather than an abstract principle. Theravadan Buddhism, the Samkhya School of Hinduism and Taoism, are notable examples. Though these religions assert an ultimate principle, reality or power informing the world of matter and energy, this is an abstract conception described as unknown or incomprehensible. Idols or symbols representing it are contemplated (Woodroffe ``The Psychology of Hindu Religious Ritual'' in Sakti and Sakta: Essays and Addresses (1969) p. 303). This meditation (rather than prayer or worship) is said to stimulate an awareness of the divine peculiar to the individual concerned. However in practice many adherents worship these images, representations and symbols as personal deities.

In the United States of America, belief in God or a supreme being is no longer regarded as essential to any legal definition of religion (
United States v. Kauten 133 F. 2d 703 (1943) ;
United States v. Ballard 322 U.S. 78 (1944) and
Welsh v. United States 398 U.S. 333 (1970) ). There, it is now sufficient that a person's beliefs, sought to be legally characterized as religious, are to him or her of ``ultimate concern'' (
United States v. Seeger 380 U.S. 163 (1965) ). Buddhism, Taoism, Ethical Culture and Secular Humanism have been held to be religions (see
Torcaso v. Watkins 367 U.S. 488 at p. 495 (1961) n. 11 ;
Washington Ethical Society v. District of Columbia 249 F. 2d 127 (1957) ;
Fellowship of Humanity v. County of Alameda 315 P. 2d 394 (1957) ).

The doctrine of a personal god has been seen by many as an unnecessary part of religious belief. Einstein declared:

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``In their struggle for the ethical good, teachers of religion must have the stature to give up the doctrine of a personal God, that is, give up that source of fear and hope which in the past placed such vast power in the hands of priests. In their labours they will have to avail themselves of those forces which are capable of cultivating the Good, the True, and the Beautiful in humanity itself.''

( Science and Religion in The Odyssey Reader (1968) p. 284.)

``The whole conception of God is a conception derived from the ancient Oriental despotisms. It is a conception quite unworthy of free men. When you hear people in church debasing themselves and saying that they are miserable sinners, and all the rest of it, it seems contemptible and not worthy of self-respecting human beings. We ought to stand up and look the world frankly in the face.''

( Why I am not a Christian (1976) p. 17.)

Julian Huxley wrote: ``religion of the highest and fullest character can co-exist with a complete absence of belief in revelation in any straightforward sense of the word, and of belief in that kernel of revealed religion, a personal god'' ( Religion Without Revelation (1957) p. 1).

Writings and beliefs

The works of Scientology were referred to as ``obscure'', ``tautologous'', ``ambiguous'', ``often ungrammatical'' and ``contradictory'' by Chief Justice Young who stated:

``It is difficult to avoid the conclusion that one of the reasons for writing in this way is that it permits an explanation of the functions or purposes of the organization to be trimmed to whatever advantage is sought or can be obtained.''

(82 ATC p. 4202; V.R. p. 116.)

Most religions have a holy book, sacred songs or stories, holy tablet or scroll containing a set of beliefs or code of conduct, often supposed to have been inspired by, or even given directly to a founder, by a god.

However, because the scriptures or writings of most religions are about the supernatural, mysteries and psychic events, as well as often obsolescent theories about nature, they are frequently contradictory. Thomas Paine exposed the numerous contradictions in the Christian Bible (The Age of Reason - Being An Investigation of True and Fabulous Theology (1938)). Ambiguities, obscurities and contradictions are found in the holy books of many other religions. Religious language is frequently deliberately obscure and symbolic so as to hide mysteries from the uninitiated and communicate effectively with the unconscious mind. The oracle at Delphi was famous for prophecies so obscure that they could later be interpreted as having predicted whatever occurred. In any event, much writing is ``obscure'', ``tautologous'', ``ambiguous'', ``often ungrammatical'' and ``contradictory'', especially in philosophy, the social sciences, psychiatry and law.

Chief Justice Young also held that ``the ideas with which Scientology deals are more concerned with psychology than with ultimate truth... man's place in the universe, or with fundamental problems of human existence'' (82 ATC p. 4209; V.R. p. 125). The evidence does not sustain this finding. Further, psychology does concern itself with those subjects. Modern psychological studies suggest that levels of awareness or consciousness giving meaning and purpose to life, once regarded as exclusive to religion and shrouded in mystery and superstition, can be achieved by non-religious insights.

Revision of beliefs

The respondent contended that the fact that in its early writings Scientology claimed to be a science rather than a religion indicates that its subsequent desire to be a religion cannot be genuine (Chief Justice Young ATC pp. 4207-4208; V.R. p. 123; Mr. Justice Kaye ATC pp. 4217-4218; V.R. p. 135). Mr. Justice Crockett stated:

``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.''

(80 ATC p. 4677; V.R. p. 109.)

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There are many groups now recognized as religions which, when they began, claimed not to be. The development of Scientology resembles that of Christian Science. Mary Baker Eddy, the founder, claimed to deal with the development of human personality in a scientific way. Persecution, defections and associated lawsuits threatened to destroy what Mrs. Eddy saw as her contribution to the welfare of humanity. So she took advantage of the legal privileges extended to religion by obtaining a formal charter for her Church of Christ (Scientist) in 1879 (see Ahlstrom A Religious History of the American People (1972) p. 1022). Many religions alter their beliefs to retain their social standing and acceptability. Most religions are not static but evolve in belief and structure as a result of internal and external pressure. As science has advanced, many religious beliefs have been abandoned or reinterpreted. When followers become sceptical, dogma tends to be reinterpreted as allegory, religious fact as fantasy and religious history as myth.

Code of conduct

Chief Justice Young found that Scientology could also not be considered a religion because its doctrines contained ``no complete or absolute moral code'' (82 ATC p. 4209; V.R. p. 125). Most religions contain a code of principles regulating the spiritual and social activities of their members. Many codes confer sacred status on activities such as eating, sexual intercourse, marriage, birth and burial. Religious codes of conduct are usually so difficult to observe that the followers constantly infringe and must undergo some penance, either spiritual or financial, to placate the god, to overcome their feelings of guilt or to maintain their place within the religion. The idea of a ``complete or absolute moral code'' is however alien to the classical forms of religions such as Hinduism or Buddhism. In those, men and women do not offend against a set of principles but against themselves - reaping the karmic consequences of their actions. Schumann writes:

``Buddhism does not know of `sin', i.e. offence against the commandments of... a god. It only distinguishes between wholesome... and unwholesome... deeds - those leading towards liberation and those leading away from it.''

( Buddhism An Outline of its Teachings and Schools (1973) p. 52.)

Growth from traditional religions

The superimposition of the ``forms'' and ``ceremonies'' of established religions (Chief Justice Young 82 ATC p. 4210; V.R. p. 126), the ``calculated adoption of the paraphernalia, and participation in ceremonies, of conventional religion'' were said to be ``no more than a mockery of religion'' (Mr. Justice Crockett 80 ATC p. 4677; V.R. p. 109). But throughout history new religions have adopted and adapted the teachings, symbols, rituals and other practices of the traditional religions.

Buddha drew upon the earlier teachings of Hinduism, as did many Greek religious teachers such as Apollonius of Tyana and Pythagoras. Mohammed drew upon Christian teachings and there is evidence in the Dead Sea and the Nag Hammadi Scrolls that the Christian teachings were based on those of the Essenes. Many religions copied from earlier religions the golden rule of respect for others.

Organized Christianity took over many of the forms and ceremonies of the pagan fertility rite of Easter (with its connections to the full moon and the northern spring equinox) and the winter solstice celebration on 25 December under the ancient calendars, the birth day of the solar deity Mithra. Leaders of the Christian Church from St. Paul to St. Augustine recognized the similarities between the Christian ceremonies of baptism and the eucharist and the Mysteries of Mithra, Cybele and Attis involving partaking of bread, fish and wine. As Charles Bradlaugh said ``No religion is suddenly rejected by any people; it is rather gradually outgrown... A superseded religion may often be traced in the festivals, ceremonies, and dogmas of the religion which has replaced it'' ( Humanity's Gain from Unbelief (1929) pp. 1-2).

Propitiation and propagation

Chief Justice Young stated that there were ``no elements of propitiation or propagation in any of the ceremonies'' (82 ATC p. 4210; V.R. p. 126) of the Church of the New Faith. Blood sacrifices and other forms of

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propitiation by gift or worship were prominent in older religions. Modern religions however tend to replace actual with notional sacrifice and to replace propitiation or appeasement with concepts such as ``making peace with one's soul''. Absence of propitiation from Scientology only indicates that Scientology is somewhat removed from the primitive religions.

In the older religions propagation occurred in various ways, by natural increase amongst the adherents with which fertility rites were associated, and by conversion of non-believers. Indoctrination or ``brainwashing'' is typical of many religions. Often this takes place during an intense period of initiation. Adherence and conversion are also achieved in most religions by regular meetings, ceremonies and rituals. Special ceremonies may be held at times of physiological significance, such as puberty; times critically important for agriculture or natural food sources such as the onset of spring or midsummer; days historically important to the religion such as the founder's birth or death, or for astrological reasons. Scientology appears to conform to this general pattern of propagation.

Public acceptance

Chief Justice Young stated: ``I do not think that there has been in Victoria such public acceptance of Scientology as a religion as requires the Court to treat it as such'' (82 ATC p. 4210; V.R. p. 126). He said that the word ``scientology'' was not be found in any ``reputable dictionary'' (82 ATC p. 4202; V.R. p. 115) but this was an error. The major Australian dictionary, The Macquarie Dictionary (1981), refers to Scientology as an ``applied philosophy'', and in the addenda to the Shorter Oxford English Dictionary (1977) it is referred to as ``a religious system based on the study of knowledge, and seeking to develop the highest potentialities of its members''. It is also referred to in the standard work the Abingdon Dictionary of Living Religions (1981) as a ``religious movement founded in 1952 by L. Ron Hubbard, U.S. science fiction writer and author of the best-selling book Dianetics (1950), which launched a popular self-enhancement movement out of which Scientology emerged''.

Most religions seek, if not to convert the public, at least to secure its acceptance of their beliefs. Nearly all religions commence as minority groups, often gathering around the teachings of one seemingly inspired individual. Their rise to public acceptance is normally very slow and difficult.

As the United States Supreme Court stated, a test of public acceptability would create ``a danger that a claim's chances of success would be greater the more familiar or salient the claim's connection with conventional religiosity could be made to appear'' (
Gillette v. United States 401 U.S. 437 (1971) at p. 457 ). The proliferation of religions and religious sects would present difficulties for any test based on public acceptability. There are now about 500 distinct groups in Australia (unpublished research of Tillett, Department of Religious Studies, University of Sydney (1982); see also list of recognized denominations under sec. 26 of the Marriage Act 1961, Commonwealth of Australia Gazette No. G34, 30 August 1983).

Claim to be the true faith

Chief Justice Young stated:

``It seems clearly possible on the evidence to embrace scientology whilst remaining an adherent of a recognised religion such as Roman Catholicism. There is no claim that scientology is the true faith. There is no obligation to accept a body of doctrine which is regarded as essential or even important.''

(82 ATC p. 4211; V.R. p. 127.)

Scientology may be unusual in not claiming to be the one true faith. However, there have been many religious or quasi-religious groups which proclaim that their adherents may also adhere to other religions such as the Quakers, the Latitudinarians, the Theosophists, the Baha'is and the Zen Buddhists. Classical Hinduism in theory adopts the proposition ``Truth is one; sages call it by different names'' and embraces religious groups of widely different belief and structure.

The faith of members of various religions has inspired concern for others which has often been reflected in humanitarian and charitable works. However, the claim to be the one true faith has resulted in great

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intolerance and persecution. Because of this, the history of many religions includes a ghastly record of persecution and torture of non-believers. Hundreds of millions of people have been slaughtered in the name of God, love and peace. In the effort to uphold ``the one true faith'' Courts have often been instruments for the repression of blasphemers, heretics and witches. Ingersoll claimed that such religious persecution sprung ``from a due admixture of love towards God and hatred towards man'' ( Lectures and Essays (1956) p. 42).

Commercialism

Chief Justice Young stated:

``Nothing in the way the ideas of scientology are exploited commercially suggests that it is a religion. Indeed the considerations referred to under this heading might be thought to point clearly to the opposite conclusion.''

(82 ATC p. 4211; V.R. p. 128.)

The commercial operations were: (i) sale of services to members, (ii) charges for instruction leading to ordination, (iii) financial arrangements with overseas headquarters, and (iv) registration as trade names words such as ``Scientology'' and other steps taken to protect trade marks, trade-names, patents and copyright, all owned by the founder, Mr. Hubbard.

Most organized religions have been riddled with commercialism, this being an integral part of the drive by their leaders for social authority and power (in conformity with the ``iron law of oligarchy''). The amassing of wealth by organized religions often means that the leaders live richly (sometimes in palaces) even though many of the believers live in poverty. Many religions have been notorious for corrupt trafficking in relics, other sacred objects, and religious offices, as well as for condoning ``sin'' even in advance, for money.

The great organized religions are big businesses. They engage in large scale real estate investment, money-dealing and other commercial ventures. In country after country, religious tax exemption has led to enormous wealth for religious bodies, presenting severe social problems. These often precipitate suppression of the religion or its leadership and expropriation of its wealth (see Larson Church Wealth and Business Income (1965); Larson and Lowell The Religious Empire (1976)). In the United States of America, where tax exemptions (but not subsidies) are available, Dr. Blake, former President of the National Council of Churches, stated that in view of their favoured tax position America's Churches ``with reasonably prudent management,... ought to be able to control the whole economy of the nation within the predictable future'' ( Christianity Today vol. 3 No. 22 (1959) p. 7). Commercialism is so characteristic of organized religion that it is absurd to regard it as disqualifying.

Special leave

Christianity claims to have begun with a founder and twelve adherents. It had no written constitution, and no permanent meeting place. It borrowed heavily from the teachings of the Jewish religion, but had no complete and absolute moral code. Its founder exhorted people to love one another and taught by example. To outsiders, his teachings, especially about the nature of divinity, were regarded as ambiguous, obscure and contradictory, as well as blasphemous and illegal. On the criteria used in this case by the Supreme Court of Victoria, early Christianity would not have been considered religious.

On this appeal, the Court was informed that following the Supreme Court's decision, the Victorian Commissioner of Probate Duties has refused to treat the Seventh Day Adventists as a religious institution. The Seventh Day Adventists are generally accepted as religious. They have been in Australia since 1885, and were ``enthusiastic and dedicated proponents of liberty of conscience, and of the strict separation of Church and State'' and campaigned vigorously for the introduction of a freedom of religion clause into the Constitution of the Commonwealth (see Richard Ely Unto God and Caesar (1976) p. 27). The approach of the Supreme Court of Victoria, if allowed to prevail, would result in intolerable religious discrimination. The case for granting special leave to appeal is overwhelming.

Conclusion

The applicant has easily discharged the onus of showing that it is religious. The

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conclusion that it is a religious institution entitled to the tax exemption is irresistible.

The Commissioner should not be criticized for attempting to minimize the number of tax exempt bodies. The crushing burden of taxation is heavier because of exemptions in favour of religious institutions, many of which have enormous and increasing wealth.

Special leave to appeal should be granted and the appeal allowed. The applicant's objection to the assessment of pay-roll tax should be upheld. The Commissioner should pay the applicant's costs at every level.

Appendix of Additional References

Financial advantages of religion

Picarda ``New Religions as Charities'' New Law Journal vol. 131 (1981) p. 436; Emory and Zelenak ``The Tax Exempt Status of Communitarian Religious Organizations: An Unnecessary Controversy?'' Fordham Law Review vol. 50 (1982) p. 1085.

Scepticism and religion

Cornford Greek Religious Thought (1923) p. 134; Voltaire Philosophical Dictionary (Gay trans. 1962); Torrey The Spirit of Voltaire (1963) pp. 263-264; Baumer Religion and the Rise of Scepticism (1960); Nielsen Scepticism (1973); Chadwick The Secularization of the European Mind in the Nineteenth Century (1975); Lecky History of the Rise and Influence of the Spirit of Rationalism in Europe (1910); Redwood Reason, Ridicule and Religion (1976); Campbell ``The Character of Australian Religion'' Meanjin Quarterly vol. 36 (1977) p. 178; Clark Select Documents in Australian History 1851-1900 (1971) pp. 797 and 811-812; Wilson ``The Church in a Secular Society'' in The Shape of Belief - Christianity in Australia Today (ed. Harris, Hynd and Millikan 1982) p. 1; Mol Religion in Australia - A Sociological Investigation (1955); Manning Clark A Discovery of Australia: Boyer Lectures (1976) p. 13; Facey A Fortunate Life (1981) p. 317.

Illegality of religious practices

Adelaide Company of
Jehovah's Witnesses Inc. v. Commonwealth (1943) 67 C.L.R. 116 ;
Reynolds v. United States 98 U.S. 145 (1878) ; The Late Corporation of the Church of Jesus Christ of
Latter-Day Saints v. United States 136 U.S. 1 (1889) .

The origins of religion

Solecki ``The Implications of the Shanidar Cave Neanderthal Flower Burial'' Annals of the New York Academy of Sciences vol. 293 (1977) p. 114; Noss Man's Religions (6th ed. 1974); Hadingham Circles and Standing Stones (1975); Finegan The Archeology of World Religions (1952); Berndt Australian Aboriginal Religion (1974); Elkin Aboriginal Men of High Degree (1981); Law Age of the Rgveda (1965).

Scientology

Hubbard The Creation of Human Ability (1976); Hubbard Dianetics 55! (11th ed. 1979); Hubbard Science of Survival (1968); Hubbard Scientology: A History of Man (1968); Hubbard Dianetics The Evolution of a Science (11th ed. 1974); Hubbard Dianetics The Modern Science of Mental Health (1976); Hubbard Scientology The Fundamentals of Thought (1972); Hubbard Scientology 8-8008 (7th ed. 1967); Ceremonies of the Founding Church of Scientology (1967); Scientology and the Bible (1967); Hubbard Scientology 8-8008 (1967).

Magic, science and religion

Lucretius ``On The Nature of Things'' in Selections From Hellenistic Philosophy (Clark ed. 1940) p. 44; Hume ``The Natural History of Religion'' in Hume on Religion (Wollheim ed. 1963) p. 31; Frazer The Golden Bough - A Study in Magic and Religion (1954); Levy-Bruhl Primitive Mentality (1923); Malinowski Magic, Science and Religion and Other Essays (1948); Toynbee A Study of History (Somervell Abridgement 1947) p. 482.

Sociological approach to religion

Durkheim ``The Elementary Forms of the Religious Life'' in Durkheim on Religion (Pickering ed. 1975) p. 102; Harrison Themis - A Study of the Social Origins of Greek Religion (1927); Weber The Sociology of Religion (Fischoff trans. 1963); Weber The Protestant Ethic and the Spirit of Capitalism (Parsons trans. 1968); Wilson Magic and the Millennium - A Sociological Study of Religious Movements of Protest Among Tribal and Third-World Peoples (1973).

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Psychological approach to religion

Philp Freud and Religious Belief (1956) p. 44; Jung ``The Archetypes of the Collective Unconscious'' in Collected Works vol. 7 (1953) p. 88; Jung ``The Archetype in Dream Symbolism'' in Collected Works vol. 18 (1977) p. 227; Clark The Psychology of Religion (1958); Shweder ``Aspects of Cognition in Zinacanteco Shamans: Experimental Results'' in Reader in Comparative Religion - An Anthropological Approach (ed. Lessa and Vogt 1979) p. 327.

Belief in a personal god

Helmuth von Glasenapp Buddhism - A Non-Theistic Religion (1970); Chakravarti Origin and Development of the Samkhya System of Thought (1975) p. 40; Keith The Samkhya System (1924) p. 23; Smart The Religious Experience of Mankind (1976); Parrinder Worship in the World's Religions (1961); Kumarappa The Hindu Conception of the Deity (1934).

Sacred writings and beliefs

Holy Book and Holy Tradition (ed. Bruce and Rupp 1968); Donovan Religious Language (1976); Religious Language and the Problem of Religious Knowledge (Santoni ed. 1968); O'Flaherty The Critical Study of Sacred Texts (1979); High New Essays on Religious Language (1969).

Psychology and religion

Coe The Psychology of Religion (1916); Selbie The Psychology of Religion (1924); Goodenough The Psychology of Religious Experiences (1965); William James The Varieties of Religious Experience (1952); Jung Man and his Symbols (1964); Wilson Mysteries (1978); Rhine New Frontiers of the Mind (1937); Tyrrell The Nature of Human Personality (1954); Wieman Religious Experience and Scientific Method (1954); Eliade Shamanism - Archaic Techniques of Ecstasy (1964).

Revision of beliefs

Rhys Shaken Creeds: The Virgin Birth Doctrine (1922); Hanson Allegory and Event - A Study of the Sources and Significance of Origen's Interpretation of Scripture (1959); Shelton Smith Changing Conceptions of Original Sin (1955); Thomas Huxley Science and Christian Tradition (1904); Teilhard de Chardin Christianity and Evolution (1971); Bertrand Russell Religion and Science (1961); Peel Mary Baker Eddy - The Years of Authority (1977) p. 67.

Code of Conduct

Eliade The Sacred and the Profane - The Nature of Religion (1959); Eliade From Primitives to Zen - A Thematic Sourcebook of the History of Religions (1977).

Growth From Traditional Religions

Upadhyaya Early Buddhism and the Bhagavadgita (1971); Groves Campbell Appolonius of Tyana (1968); Radhakrishnan Eastern Religions and Western Thought (1940) pp. 142 and 143; Parrinder Jesus in the Qur'an (1965); Becker Christianity and Islam (1974); Helmbold The Nag Hammadi Gnostic Texts and the Bible (1967); Wilson The Dead Sea Scrolls 1947-1969 (1969); Dupont-Sommer The Essene Writings from Qumran (1962); Kennedy St. Paul and the Mystery-Religions (1913); Guignebert Ancient, Medieval and Modern Christianity - The Evolution of a Religion (1961) p. 73; Barnes The Rise of Christianity (1948).

Brainwashing

``Colloquium: Alternative Religions: Government Control and the First Amendment'' New York University Review of Law and Social Change vol. 9 (1980).

Religions not claiming to be the one true faith

Emmott A Short History of Quakerism (1923); Muller Theosophy or Psychological Religion (1898); Gaver The Baha'i Faith (1967); Dom Aelred Graham Zen Catholicism (1963); The Asian Journal of Thomas Merton (ed. Burton, Hart and Laughlin 1973); J.K. Kadowaki s.j. Zen and the Bible - A Priest's Experience (Rieck trans. 1977); Hindu Scriptures (ed. Zaehner 1966) p. vi.

Intolerance

Glover The Conflict of Religions in the Early Roman Empire (1910); Lea A History of the Inquisition of the Middle Ages (1906); Hall Law, Social Science and Criminal Theory (1982) Ch. 2 ``Religious Persecution''; Kamen The Rise of Toleration (1967); Preston King Toleration (1976); A History of the Ecumenical Movement 1517-1948 (ed. Rouse and Neill 1967); Hudson The

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Ecumenical Movement in World Affairs (1969).

Commercialism

Ullmann A Short History of the Papacy in the Middle Ages (1972); Theological Principles Governing The Church's Use of Its Property, Diocese of Sydney Synod Report (1979); Lea A History of Auricular Confession and Indulgences in the Latin Church (1896).