Cultic Studies Review, Vol. 3, Nos. 2 &3, 2004, Page 30
courts have seen fit to widen the definition of religion in such cases31 to encompass
equivalent secular belief systems which take the same place in the mind of the adherent as
more obviously religious philosophies. In marriage celebration legislation a very broad
definition of religion might also be appropriate, so that all tastes might be accommodated
with no harm done.32 However, in cases involving fiscal privileges to religious groups, the
state might well wish to be less inclusive in its largess and to direct taxpayers‘ funds to
groups clearly performing a community service. Hence the requirement in charity law that
privileged religious groups be non-profit and provide a public benefit.
The use of the word religion in quite different contexts suggests that any quest for a single
definition of religion is not only tantalizing, but probably wrong-headed. The word religion
seems best used, if at all, as a prima facie classification only, to which appropriate public
policy parameters can then be applied. If this approach is recognized an ethically neutral,
inclusive definition might well be applied for initial classification purposes. With this
approach it should not be thought outrageous for groups with a neo-Nazi ideology, or Satan
worshippers or whatever to be classified as religious. Unsavoury groups could easily be
disqualified from receiving state aid on properly outlined public policy criteria, and yet under
appropriate circumstances sincere adherents, even of questionable groups, might benefit
from the protections afforded by the legal concept of free exercise. In addition, a particular
ideological approach not superficially thought to be religious, would be caught by a non-
establishment clause.
Potential Impediment of S. 116 of the Australian Constitution Act 1900
In Australia, the only real difficulty in applying a widely inclusive prima facie definition to the
word religion, subject then to public policy parameters, lies in the possibility of judicial
interference under a constitutionally entrenched provision. This possibility arises under s.
116 of the Australian constitution referred to in endnote 1 herein. Commonwealth
legislation, for example a hypothetical Bill to establish a third sector definitions and
entitlements tribunal, would be potentially subject to overruling judicial interpretations if
religious groups were covered by the legislation, either directly or indirectly, as for example
under the definition of charity.
The Australian Constitution Act 1900 is a demarcation document. It was not conceived as a
Bill of Rights. Section 116, which is couched in terms of fundamental rights and
protections, does not apply at all to the Australian States. It sits uncomfortably in a
pragmatic document concerned with the division of power between the Commonwealth and
the States. Thus far the High Court has adopted a minimalist interpretation of the section,
although there is academic support for the view that the section requires a non-
discriminatory or neutral aid approach to government grants to religion and another view
that it requires a strict separation of church and state.
My recent examination of the cases relating to s. 116 suggests that the hitherto pragmatic
approach of the court, in reading down the implications of the section and treating it as
somewhat of an anomaly, will most probably continue.33 It is unlikely that an argument for
equal treatment of all religions with respect to state aid, under either the non-establishment
or free exercise provisions, will prevail. Even if the Court were to impose some notion of
equal aid, in my view this would be unlikely to override a scheme of equal offer subject to
soundly based public policy disqualification. However, even the potential for this to happen
would make it difficult for a Commonwealth government to convince the State governments,
unencumbered as they are by s. 116, to submit to any third sector adjudicative tribunal,
which includes by definition religious groups.
courts have seen fit to widen the definition of religion in such cases31 to encompass
equivalent secular belief systems which take the same place in the mind of the adherent as
more obviously religious philosophies. In marriage celebration legislation a very broad
definition of religion might also be appropriate, so that all tastes might be accommodated
with no harm done.32 However, in cases involving fiscal privileges to religious groups, the
state might well wish to be less inclusive in its largess and to direct taxpayers‘ funds to
groups clearly performing a community service. Hence the requirement in charity law that
privileged religious groups be non-profit and provide a public benefit.
The use of the word religion in quite different contexts suggests that any quest for a single
definition of religion is not only tantalizing, but probably wrong-headed. The word religion
seems best used, if at all, as a prima facie classification only, to which appropriate public
policy parameters can then be applied. If this approach is recognized an ethically neutral,
inclusive definition might well be applied for initial classification purposes. With this
approach it should not be thought outrageous for groups with a neo-Nazi ideology, or Satan
worshippers or whatever to be classified as religious. Unsavoury groups could easily be
disqualified from receiving state aid on properly outlined public policy criteria, and yet under
appropriate circumstances sincere adherents, even of questionable groups, might benefit
from the protections afforded by the legal concept of free exercise. In addition, a particular
ideological approach not superficially thought to be religious, would be caught by a non-
establishment clause.
Potential Impediment of S. 116 of the Australian Constitution Act 1900
In Australia, the only real difficulty in applying a widely inclusive prima facie definition to the
word religion, subject then to public policy parameters, lies in the possibility of judicial
interference under a constitutionally entrenched provision. This possibility arises under s.
116 of the Australian constitution referred to in endnote 1 herein. Commonwealth
legislation, for example a hypothetical Bill to establish a third sector definitions and
entitlements tribunal, would be potentially subject to overruling judicial interpretations if
religious groups were covered by the legislation, either directly or indirectly, as for example
under the definition of charity.
The Australian Constitution Act 1900 is a demarcation document. It was not conceived as a
Bill of Rights. Section 116, which is couched in terms of fundamental rights and
protections, does not apply at all to the Australian States. It sits uncomfortably in a
pragmatic document concerned with the division of power between the Commonwealth and
the States. Thus far the High Court has adopted a minimalist interpretation of the section,
although there is academic support for the view that the section requires a non-
discriminatory or neutral aid approach to government grants to religion and another view
that it requires a strict separation of church and state.
My recent examination of the cases relating to s. 116 suggests that the hitherto pragmatic
approach of the court, in reading down the implications of the section and treating it as
somewhat of an anomaly, will most probably continue.33 It is unlikely that an argument for
equal treatment of all religions with respect to state aid, under either the non-establishment
or free exercise provisions, will prevail. Even if the Court were to impose some notion of
equal aid, in my view this would be unlikely to override a scheme of equal offer subject to
soundly based public policy disqualification. However, even the potential for this to happen
would make it difficult for a Commonwealth government to convince the State governments,
unencumbered as they are by s. 116, to submit to any third sector adjudicative tribunal,
which includes by definition religious groups.
