Beyond the Scientology case: towards a better definition of what constitutes a religion for legal purposes in Australia having regard to salient judicial authorities from the United States of America as well as important non-judicial authorities
Posted on 16. Aug, 2010 by James Miller
|Title||Beyond the Scientology case: towards a better definition of what constitutes a religion for legal purposes in Australia having regard to salient judicial authorities from the United States of America as well as important non-judicial authorities|
|Year of Publication||2007|
|Publisher||University of Technology, Sydney. Faculty of Law|
|Keywords||Belief, FAITH, law, legal definition, Religion, religious|
The aim of this thesis is to formulate a better definition of religion for legal purposes than the formulation arrived at by the High Court of Australia in the 1983 decision of Church of the New Faith v Commissioner of Pay-roll Tax (Vic). In that case, known in Australia as the Scientology (or Church of the New Faith) case, two of five justices of the High Court of Australia considered belief in a supernatural Being, Thing or Principle to be an essential prerequisite for a belief system being a religion. Two other justices stated that if such belief were absent it was unlikely that one had a religion. There are major problems with the High Court’s formulation in the Scientology case. First, it does not accommodate a number of important belief systems that are generally regarded as being religious belief systems, even though they do not involve any notion of the supernatural in the sense in which that word is ordinarily understood. Secondly, the Court provided little or no guidance as to how one determines whether a particular belief system involves a supernatural view of reality. The guidance that was given is ill-conceived in any event. Thirdly, it is philosophically impossible to postulate a meaningful distinction between the “natural” and the supposedly “supernatural” in a way that would enable the courts and other decision makers to meaningfully apply the “test” enunciated by the Court. The thesis combines a phenomenological approach and the philosophical realism of the late Professor John Anderson with a view to eliciting those things that permit appreciation or recognition of a thing being “religious”. Ultimately, religion is seen to comprise an amalgam of faith-based ideas, beliefs, practices and activities (which include doctrine, dogma, teachings or principles to be accepted on faith and on authority, a set of sanctioned ideals and values in terms of expected ethical standards and behavior and moral obligations, and various experientially based forms, ceremonies, usages and techniques perceived to be of spiritual or transformative power) based upon faith in a Power, Presence, Being or Principle and which are directed towards a celebration of that which is perceived to be not only ultimate but also divine, holy or sacred, manifest in and supported by a body of persons (consisting of one or more faithxvii based communities) established to give practical expression to those ideas, beliefs, practices and activities. The new definition is tested against 3 very different belief systems, Taoism (Daoism), Marxism and Freemasonry.