6 International Journal of Cultic Studies ■ Vol. 3, 2012
public policy flexibility. Policy contests turning
on a definition of the word ‘religion’, a word
found in many fundamental laws, provide many
illuminating examples. Just as we encounter
definitional vagueness at the cultic end of the
spectrum, defining the word ‘religion’ is also
bedeviled with vagueness (to the extent that it
might be argued that it cannot be defined
satisfactorily at all) – yet despite this
imprecision it can have profound constitutional,
and hence policy, ramifications.
Australia
While it may suit some groups for recruitment
purposes to eschew a religious label, when
tactically desirable they can appeal to the courts
to obtain recognition of their latent potential for
religious status. This process has been
pioneered by the Church of Scientology, which
sought very early in its short history to assert
claims for religious status. In Australia
Scientology was able to achieve a landmark
ruling by the High Court in 1983 supporting its
claim for religious status for administrative
purposes, even though the case was heard in the
appellate rather than the constitutional
jurisdiction of the Court.20
Although Australia does not have a Bill of
Rights on the American model, there are a few
arguably anomalous provisions in the
Commonwealth of Australia Constitution Act
1900 that pertain to rights. Section 116 is a
provision that prevents the Commonwealth (not
the Australian states)21 from making laws that
infringe freedom of religion or establishing a
religion.
20 Ibid. Stephen Mutch, From “Cult” to “Religion”—Claims for
Religious Freedom Enabled the “Cult” of Scientology to
Overcome Government Suppression, Win Legal Recognition and
Gain Tax Exempt Status as a Religious Institution in Australia.
[Graduate Diploma in Arts (by research), University of New South
Wales, 2000] Mutch, “Scientologists in Australia.” In James Jupp
(Ed.), The Encyclopedia of Religion in Australia, Cambridge
University Press.
21 In September 1988 a referendum proposal to amend the
Australian Constitution to extend the limited protection for
freedom of religion in s. 116 to the Australian states was not
carried. House of Representatives Standing Committee on Legal
and Constitutional Affairs, Constitutional Change: Select Sources
on Constitutional Change in Australia 1901–1997 (Canberra: The
Parliament of the Commonwealth of Australia, 1997), pp. 110–
114.
In 1983, the Church of Scientology successfully
appealed to the High Court to gain legal
recognition as a religion in order to avoid
payroll tax in the state of Victoria. Even though
the case was not supposed to be a test of the
constitutional meaning of the word religion as it
appeared in section 116, but rather the meaning
of the words “religious or public benevolent
institution” in a Victorian state government
statute pertaining to payroll tax, the judges in
their wisdom decided to be helpful— by taking
the opportunity to clarify what religion meant in
s. 116, as a guide for other contexts. They then
applied that necessarily expansive meaning to
the Victorian statute, apparently without
ascertaining what they thought the Victorian
legislature intended the relevant words to
mean.22
This example of judicial activism has had the
administrative consequence of expanding the
meaning of the word religion to a one-size-fits-
all definition, applicable across all jurisdictions
and in all circumstances. Of course, the matter
might be tested by a determined government (or
possibly a private litigant who could establish
standing) from somewhere around Australia but
it is interesting that administrators have adopted
what they have deduced to be the two-pronged
definition of the word emanating from the
majority of the judges (belief in the supernatural,
and canons of conduct giving effect to that
belief) as though it were holy writ rather than an
excursion by judges arguably ill-equipped to
make such a consequential public policy
decision. Ill-equipped because the Australian
High Court operates on a system whereby
determinations are largely framed by the
pleadings presented by the parties research
capacity is limited and the Court is not so
experienced in the types of “rights”
determinations made by the US Supreme
Court—made necessary by their Bill of Rights.
The problem with the Australian definition of
the word religion is that it is difficult to exclude
from it any of the groups that we might identify
as cults, and which are deserving of a pejorative
connotation. So the useful policy tool of
22 The judges would argue that any oversights can be put down to
insufficient pleadings on the issue—as Australian cases are
decided on the evidence presented by the parties.
public policy flexibility. Policy contests turning
on a definition of the word ‘religion’, a word
found in many fundamental laws, provide many
illuminating examples. Just as we encounter
definitional vagueness at the cultic end of the
spectrum, defining the word ‘religion’ is also
bedeviled with vagueness (to the extent that it
might be argued that it cannot be defined
satisfactorily at all) – yet despite this
imprecision it can have profound constitutional,
and hence policy, ramifications.
Australia
While it may suit some groups for recruitment
purposes to eschew a religious label, when
tactically desirable they can appeal to the courts
to obtain recognition of their latent potential for
religious status. This process has been
pioneered by the Church of Scientology, which
sought very early in its short history to assert
claims for religious status. In Australia
Scientology was able to achieve a landmark
ruling by the High Court in 1983 supporting its
claim for religious status for administrative
purposes, even though the case was heard in the
appellate rather than the constitutional
jurisdiction of the Court.20
Although Australia does not have a Bill of
Rights on the American model, there are a few
arguably anomalous provisions in the
Commonwealth of Australia Constitution Act
1900 that pertain to rights. Section 116 is a
provision that prevents the Commonwealth (not
the Australian states)21 from making laws that
infringe freedom of religion or establishing a
religion.
20 Ibid. Stephen Mutch, From “Cult” to “Religion”—Claims for
Religious Freedom Enabled the “Cult” of Scientology to
Overcome Government Suppression, Win Legal Recognition and
Gain Tax Exempt Status as a Religious Institution in Australia.
[Graduate Diploma in Arts (by research), University of New South
Wales, 2000] Mutch, “Scientologists in Australia.” In James Jupp
(Ed.), The Encyclopedia of Religion in Australia, Cambridge
University Press.
21 In September 1988 a referendum proposal to amend the
Australian Constitution to extend the limited protection for
freedom of religion in s. 116 to the Australian states was not
carried. House of Representatives Standing Committee on Legal
and Constitutional Affairs, Constitutional Change: Select Sources
on Constitutional Change in Australia 1901–1997 (Canberra: The
Parliament of the Commonwealth of Australia, 1997), pp. 110–
114.
In 1983, the Church of Scientology successfully
appealed to the High Court to gain legal
recognition as a religion in order to avoid
payroll tax in the state of Victoria. Even though
the case was not supposed to be a test of the
constitutional meaning of the word religion as it
appeared in section 116, but rather the meaning
of the words “religious or public benevolent
institution” in a Victorian state government
statute pertaining to payroll tax, the judges in
their wisdom decided to be helpful— by taking
the opportunity to clarify what religion meant in
s. 116, as a guide for other contexts. They then
applied that necessarily expansive meaning to
the Victorian statute, apparently without
ascertaining what they thought the Victorian
legislature intended the relevant words to
mean.22
This example of judicial activism has had the
administrative consequence of expanding the
meaning of the word religion to a one-size-fits-
all definition, applicable across all jurisdictions
and in all circumstances. Of course, the matter
might be tested by a determined government (or
possibly a private litigant who could establish
standing) from somewhere around Australia but
it is interesting that administrators have adopted
what they have deduced to be the two-pronged
definition of the word emanating from the
majority of the judges (belief in the supernatural,
and canons of conduct giving effect to that
belief) as though it were holy writ rather than an
excursion by judges arguably ill-equipped to
make such a consequential public policy
decision. Ill-equipped because the Australian
High Court operates on a system whereby
determinations are largely framed by the
pleadings presented by the parties research
capacity is limited and the Court is not so
experienced in the types of “rights”
determinations made by the US Supreme
Court—made necessary by their Bill of Rights.
The problem with the Australian definition of
the word religion is that it is difficult to exclude
from it any of the groups that we might identify
as cults, and which are deserving of a pejorative
connotation. So the useful policy tool of
22 The judges would argue that any oversights can be put down to
insufficient pleadings on the issue—as Australian cases are
decided on the evidence presented by the parties.
