International Journal of Cultic Studies ■ Vol. 10, 2019 65
religious groups (for which public benefit was
long presumed under the common law of
charity). So while the major parties were
reluctant (as general policy rather than
constitutional imperative) to target a specific
entity that might claim religious status, the
generic inquiry was understood by all to have
been prompted by the allegations raised about
Scientology.
In due course, on the basis of evidence received
about Scientology and some other groups, the
Senate Committee noted, with respect to cults,
that “[i]t is a matter of concern that allegations
of grossly inappropriate behaviour continue to
be made, and arouse concern, yet there is no
systematic means of dealing with these
allegations, especially where no specific
criminal offence has been committed …
[S]ufficient evidence was put before it to suggest
that the behaviour of cults should be reviewed
with a view to developing and implementing a
policy on this issue that goes beyond taxation
law.”82
It recommended, unanimously, that the
government respond to “unacceptable behaviour
by cult like organizations” by developing an
“international best practice approach.”83 While
this recommendation was sidestepped with tepid
excuses by a timid government,84 another
recommendation to proceed with the
establishment of a national commission to deal
with the not-for-profit sector was arguably the
final catalyst leading to the establishment of the
Australian Charities and Not-for-profit
Commission in December 2012.
The Senate Committee was also very much alive
to the dilemma presented by the High Court’s
82 Senate Economics Legislation Committee, Report on the Tax
Laws Amendment (Public Benefit Test) Bill 2010, Canberra,
September 2010, p. 29–30.
83 Ibidem, p. 3–4.
84 Senate Economics Reference Committee, Senate Economics
Reference Committee inquiry into augmented tax assessments:
Commonwealth Government response, Canberra 2011. For a
critique of this response, see S. Mutch, Cults and Public Policy:
Protecting the Victims of Cultic Abuse in Australia, the paper
presented at the CIFS conference Cults in Australia: Facing the
Realities, hosted by Senators Sue Boyce &Nick Xenophon,
Canberra, 2 November 2011.
1983 Scientology decision,85 which it noted is
sometimes interpreted as meaning that the Court
provided a one size fits all definition of religion
for all occasions.86.Examining the reasoning of
the Court, it does seem that the Court was
sensitive to the various contexts in which a
definition of religion might be applied. As it was
an appellate decision, it might have been
predicted that the Court would easily determine
that the Victorian government did not intend to
benefit Scientology as a religious institution at
the relevant time under the Pay-roll Tax Act
1971. This possible prediction would have
accorded with the views of the Victorian
Supreme Court, particularly as Scientology was
outlawed in the 1965 Psychological Practices
Act (the fact that those aspects of the Act
dealing with Scientology were repealed in 1982
being irrelevant to the legislative intent at the
time). But the High Court took the view that
pay-roll tax exemptions were applicable to
religious institutions rather than being applicable
in the context of charity law, and so: “The
privileges afforded to religious institutions …
can be seen as an endeavour by the Victorian
legislature to promote religious freedom
generally through the support of religious
institutions, rather than an effort to promote
charitable activities specifically.”87
Therefore the expansive definition applicable to
constitutional protection of religious exercise
might also be relevant in the context of
promoting religious freedom through taxation
relief. It can be observed that the lack of
vigorous pleadings to the contrary might have
aided this outcome, and Wilson &Deane JJ
invited the Victorian legislature to rectify the
position if it disagreed (notwithstanding changes
in government in the interim), noting that while
they had determined Scientology to be a religion
in Victoria for relevant purposes, “[t]hat does
not, of course, mean either that the practices of
the applicant or its rules are beyond the control
85 Which was reported with a straight bat by Australian
newspapers, in coverage that allowed Scientology to claim it was a
“blow for religious freedom” see, e.g., V. Blunden, “Scientology a
religion, High Court says,” The Sydney Morning Herald, 28
October 1983, p. 3.
86 Senate Economics Legislation Committee, op. cit., p. 22.
87 S. Mutch, Cults, Religion, and Public Policy, p. 337.

66 International Journal of Cultic Studies ■ Vol. 10, 2019
of the law of the State or that the applicant or its
members are beyond its taxing powers.”88 These
nuances mostly go unnoticed, and by default a
one size fits all definition of religion seems to
have been given wide administrative
applicability in Australia.89 In a timely
clarification, the Senate Economics Legislation
Committee pointed out that: “This ruling by the
Court is sometimes put forward as implying that
any organization claiming a belief in a
supernatural being, thing or principle should
unquestionably receive a tax benefit. But while
there is probably a consensus that a broad
definition of religion is perfectly appropriate in
determining the right to express religious views,
it does not follow that there are always sound
public policy grounds for other taxpayers to
subsidise such an organization.”90
With the establishment of the Australian
Charities and Not-for-profit Commission
(despite an initial desire by the newly elected
government to close it down91 the Commission
survived due to the government’s lack of
numbers in the Senate), it is possible that over
time some genuine attempt will be made to
88 Ibidem, p. 338, citing Church of the New Faith v. Commissioner
of Pay-Roll Tax (Victoria), CLR 120, Canberra, 27 October 1983,
p. 176.
89 A one size fits all definition of religion has often been
uncritically accepted. The members of a charities inquiry call the
Scientology case “the most significant authority on the question of
what constitutes a religion” and that “there is no reason to move
away from the decision … that a religion must have two
characteristics: belief in a supernatural Being, Thing or Principle
and that there is an acceptance of canons of conduct that give
effect to that belief by some part of the community” (I.F. Sheppard
et al., Report of the Inquiry Into the Definition of Charities and
Related Organisations, Canberra, June 2001, p. 175, 178). For
discussion of how a single definition of religion can narrow policy
options, see S. Mutch, “Cults and Religious Privileges in England
and Australia: Can the Wheat be Separated from the Chaff,?”
Cultic Studies Review, 2004, vol. 3, no. 2/3, p. 135–151.
90 Senate Economics Legislation Committee, op. cit., p. 22.
91 M. Seccombe, “Andrews leads fight to abolish charities
commission,” The Saturday Paper, 29 March–4 April 2014, no. 5,
https://www.thesaturdaypaper.com.au/news/politics/2014/03/29/an
drews-leads-fight-abolish-charities-commission/1396011600 By
2015, the government had conceded that there was strong support
for the ACNC generally and no chance that the Senate would
support repeal legislation. The then social services minister, Scott
Morrison, suggested that “rather than regulation, the ACNC should
be about championing charities” see S. Medhora, “Coalition set to
abandon plans to scrap charities regulator,” The Guardian, 9
September 2015, https://www.theguardian.com/australia-news/
2015/sep/09/coalition-set-to-abandon-plans-to-scrap-charities-
regulator.
separate the wheat from the chaff,92 at least with
respect to the required nexus between public
benefit and taxpayer supported financial
concessions for religious charities.
While a wide definition of religion might be
applicable for free exercise purposes, such as
performing rites over baptism, marriage, and
death, it is still open for legislatures to determine
the extent to which financial privileges are
granted to religious institutions. It might be that
financial privileges should only be applied to
those groups that operate in the public interest
or, in the case of religious institutions (as
opposed to religious charities where a wider
public interest test can already be applied), at
least operate for the benefit and not to the
detriment of adherents.
Notwithstanding the confusion surrounding the
1983 Scientology decision, it is still open for
these distinctions to be made by definitional
disqualification93 (particularly at the level of
state governments but possibly also at the
federal level94), by requiring a positive ethic
(either externally,95 or internally, or both)96 in
92 The Committee had seized upon an infamous extract from the
1983 High Court decision, where it is noted that “Charlatanism is a
necessary price for religious freedom, and if a self-proclaimed
teacher persuades others to believe in a religion which he
propounds, lack of sincerity or integrity on his part is not
incompatible with the religious character of the beliefs, practices
and observances accepted by his followers” (Church of the New
Faith v. Commissioner of Pay-Roll Tax [Victoria], p. 141).
93 In 1999, Scientology failed the then two pronged definitional
tests of religion (belief in God and worship) for charitable purposes
in England and Wales, as its practice of auditing was considered to
be more akin to counselling than worship, thereby being denied
entry to the privileges afforded by charitable status by dint of
definitional disqualification see the Charity Commission, Decision
of the Charity Commission on the Church of Scientology (England
and Wales), [London], 17 November 1999, pp. 1–2. For a
discussion of the various methods employed to exclude groups
from a class of privilege, see S. Mutch, Cults and Religious
Privileges, p. 135–151.
94 In the 1983, Scientology case Wilson &Deane JJ note that
“there may be grounds for attributing a wider meaning to the word
‘religion’ in the context of a constitutional guarantee … than in the
context of a statutory exemption from pay-roll tax” (Church of the
New Faith v. Commissioner of Pay-Roll Tax [Victoria], p. 173).
95 Through a public benefit test as per charity law.
96 Centrepoint Community Growth Trust V Commissioner of Inland
Revenue, 1 NZLR 673, Wellington 1985. Here an internal ethic
was considered necessary as well as a wider ethical code
applicable to charitable status even though the internal ethic
required was very minimal, being “total honesty in their
relationships with each and their commitment to Mr Potter and his
teachings” (S. Mutch, Cults and Religious Privileges, p. 140–141).