Introduction —

“You don’t get rich writing science fiction. If you want to get rich, you start a religion.”[1] ~L. Ron Hubbard

The Church of Scientology, formerly the Hubbard Association of Scientologists International (HASI),[2] began as a purely secular organization centred around, in cult-like fashion, the writings and pseudo-scientific psychiatric philosophy espoused by the science fiction writer Lafayette Ron Hubbard.[3] Prior to 1959, The Church of Scientology had no desire to be recognized as a religion in either the United States or Australia. In fact, Hubbard expressly rejected the allegation that Scientology was a religion, writing in 1954, ‘[Scientology] is neither a psychotherapy nor a religion’.[4] Scientology is primarily based upon Hubbard’s bestselling book, Dianetics: The Modern Science of Mental Health. There is no recognizable theology within the earliest editions of Hubbard’s Dianetics and it appears that the shift from secular self-help cult to religion was a purely pragmatic move by Hubbard to enrich himself and his cohorts. In a 1953 letter to one of his employees, Helen O’Brien, Hubbard inquired about the possible establishment of a Scientology clinic in the US, writing, ‘I await your reaction on the religion angle. In my opinion, we couldn’t get worse public opinion than we have had or have less customers with what we’ve got to sell. A religious charter would be necessary in Pennsylvania or NJ to make it stick’.[5] It is clear Hubbard never initially intended Scientology to be a religion at all, and that it was due to the pragmatic, financial considerations of Hubbard that Scientology eventually became an officially recognized religion in numerous secular countries.

In 1957 Scientology became a recognized religion in the US, yet following the findings and ruling of the Internal Revenue Service (IRS), Scientology’s tax-exempt status was revoked in California, which was at the time the central operating headquarters for Scientology.[6] The 1967 ruling held: ‘that the Church was “engaged in a business for profit,” and was “operated in a manner whereby a portion of [its] earnings inure[d] to the benefit of a private individual,” and was “serving a private, rather than a public interest.” [7] Following the revocation of Scientology’s tax-exempt status, Scientology, under the leadership of Hubbard, launched a vigorous campaign against the IRS, bugging and breaking into offices, stealing documents, infiltrating the IRS itself, harassing IRS agents and filing thousands of law suits against the IRS.[8] After years of intimidation and harassment, the IRS finally caved and in October of 1993 the IRS granted Scientology full tax-exempt status as a recognized religion.[9]

The situation in Australia was not quite as controversial. In 1963 the Bolte government in Victoria launched an investigation into the practices of then fully secular organization of Scientology,[10] and in 1965 the Psychological Practices Act was passed.[11] Section 30 of this Act prevented the use of Scientology’s E-meters by unregistered persons and Section 31 prevented the teaching of Scientology for financial gain.[12] In 1969 Scientology incorporated in South Australia and Victoria under a new name, the ‘Church of the New Faith’, and it applied to the Victorian Commissioner for Pay-Roll Tax for tax-exemption as a ‘religious institution’ in Victoria. One of the pragmatic reasons for this move in Victoria was that S. 2(3) of the Psychological Practices Act 1965 (Vic) S.2(3) established an exemption from the restrictive operation of the Psychological Practices Act to ‘anything done by any person who is a priest or minister of a recognized religion in accordance with the usual practise of that religion’.[13] The Commissioner of Pay-Roll Tax rejected Scientology’s application and so Scientology eventually took the case to the Supreme Court of Victoria and once again lost their case, with one aspect of Crockett J’s ruling being sourced from one of Scientology’s own publications, Testing, which reads: ‘’H.A.S.1. is non-religious – it does not demand any belief or faith nor is it in conflict with faith. People of all faiths use Scientology’.[14] After failing to win their appeal at the Full Court of the Supreme Court of Victoria, Scientology won leave to have their case heard by the High Court of Australia and in that case they won the right be legally considered a tax-exempt, bona fide religion.

This essay will draw upon scholarship in studies in religion to compare and contrast the definitions of ‘cult’ and ‘religion’. A critical appraisal of the ruling of the High Court of Australia in Church of New Faith v Commissioner of Pay-Roll Tax (1983) will be briefly outlined to examine some of the flaws and strengths of the Justices’ definitions of ‘religion’ as applied to Scientology. Further still, Section 116 of the Australian Constitution, which acts as a Bill of Rights for ‘religious freedom’ in Australia, will be critiqued in terms of its broad application to various self-described religious groups and its chilling effect on the judiciary’s ability to not only thwart the operation of harmful and oppressive cults in Australia, but also its role in bestowing upon them legal, financial and social gratuities that aid in the protection of cults and religions at the expense of individual human rights. Contrary considerations will also be examined, such as the potential problems associated with secular legislatures and judiciaries having excessively broad powers to dictate and determine what may or may not be classified as a ‘religion’, which could potentially undermine secularism by eroding the Separation of Church and State. Finally, it will be argued that whether or not Scientology is classified as a cult or a religion, amendments need to be made to S. 116 of the Australian Constitution that expressly place greater emphasis on the protection the human rights of individual Australians over the broad freedoms and gratuities bestowed upon legally recognized ‘religions’.

Cult vs Religion

In the words of Wilfred Cantwell Smith, “[religion] is notoriously difficult to define”.[15] Scholars from a variety of disciplines approach the subject in a variety of ways and even within each discipline, whether it be philosophy, psychology, sociology, anthropology or studies in religion, opinions vary greatly as to what exactly constitutes a religion. Some definitions suffer from excessive inclusivity whilst others suffer from myopic exclusivity.[16] Put simply, some inclusivist definitions include non-religions within their overly broad definitions, such as politics and art,[17] whilst other exclusivist definitions omit religions like Buddhism and Hinduism because they do not accord with western notions of religion that make belief in a monotheistic god the primary indicium.[18] So how can one distinguish a religion from a cult if defining the former in any precise and exhaustive manner is seemingly impossible? Moreover, considering that many of the perceived distinctions between cults and religions are largely discursive in nature, and that religions frequently begin as cults and then transform into large, socially acceptable cults – called religions – how can the two be told apart in any substantial way? Perhaps the best approach might be to begin by defining and isolating the elements commonly ascribed to cults.

‘Cult’

Kohn describes a ‘cult’ as: ‘an original, leader-focused, and highly demanding religious group which usually withdraws from engagement with the larger society except for recruitment purposes.’[19] Critiquing Kohn’s definition, Australian Human Rights Commissioner Chris Sidoti, in a 1998 report submitted to the Australian Attorney-General on Article 18 of the International Covenant on Civil and Political Rights (1976), argued: ‘The essential problem is to identify the criteria by which ‘cults’ or potentially dangerous religious groups are to be identified. Kohn describes several groups in language which seems to focus on their dangers to people. However, most of the charges laid against these groups which Kohn considers dangerous would apply equally well to mainstream religious groups. For example, like the groups she describes, mainstream groups use other services like day-care, schools or counselling to attract and maintain members. Most religious groups are very concerned to grow and many offer graded access to the secrets, or message of the group as well as having authoritarian leadership and making high demands of their members.’[20] Following Sidoti’s critique that highlighted the difficulty of distinguishing between cults and religions, Sidoti’s report sourced criteria for identifying a ‘cult’ from the largest cult awareness organization in Australia, CultAware. These twelve characteristics, whilst neither exhaustive nor completely exclusive to cults, do provide a reasonably reliable and practical guideline for distinguishing cults from religions, and all twelve can be ascribed to Scientology with relative ease. For the sake of brevity, nine of the twelve indicia of cults will be applied to Scientology.

Scientology: Nine of the Twelve Characteristics of Cults

Leader Alleges Own Divinity or Special Mission Delegated to Him/Her[21]

The founder of Scientology, L. Ron Hubbard, never claimed his own divinity, yet from the available evidence it certainly appears that he believed he had been delegated the important duty of saving mankind and the planet.[22] His wife, Sara Northrup, wrote: ‘He began to believe he was a saviour and a hero, that he was really this God figure’.[23] This element was even woven into Scientology’s etiological myth concerning Xenu. The Xenu myth, rewritten by Hubbard as a piece of science fiction titled Revolt in the Stars,[24] purports to describe primordial events in which an inter-galactic ruler, Xenu, brought millions of thetans (immortal spiritual beings)[25] to earth, which, according to this myth is how life in this part of the universe began.[26] Commenting on this myth, Lewis says: ‘The myth is an account of primordial events, but indirectly it also promotes Hubbard as the savior of humankind and Scientology (being the guardian of the soteriological rituals) as his tool’.[27]

Leader Demands Complete Obedience and is the Judge of Member’s Faith[28]

In the 1960’s, behavioural science studies into obedience took off, but they soon encountered justified criticism from human rights groups concerned with the unethical treatment of unsuspecting participants to such mind-altering studies.[29] By the mid-to-late 1970’s such studies were stopped and the formal examination into obedience ceased. However, around the same time, charismatic cults began to emerge, thus filling the gap in formal scientific studies with naturally occurring social experiments.[30]

Discussing the nature and function of obedience in cults and dictatorships, and basing his arguments on the renowned experiments into obedience conducted by Milgram in the mid 1970’s, Abgrall argues: ‘Transposed into the cult milieu, Milgram’s experiments show how well the guru can control the followers. Invested with a superhuman knowledge and power by the cult, he generates, by his very presence, by his writings or his words, a powerful presumption in favour of the correctness of the action undertaken – which opens the door to every transgression. For a cult member, no act can be interpreted until it is integrated in the dogma and ethics, which devolve from accepting the guru’s authority and the cult’s power…Moreover, within the cult, questioning obedience is penalized by the loss of the acquired status. The agentic state is thus further reinforced by the former privileges and by fear of punishment’.[31]

When Hubbard first launched the Sea Org (Scientology’s senior management organization)[32] upon his ship the Avon River in the 1960’s, disobedient members were subjected to humiliating and terrifying punishments. Some of these punishments included having heavy chains draped over the offending member, being forced to wear rags, being locked in the bowels of the ship and even being thrown overboard with the disobedient member’s eyes blindfolded, or even with their hands and feet bound for more serious acts of disobedience.[33] When Hubbard died and David Miscavige became the new, intensely authoritarian leader of the Church of Scientology, punishments for disobedience amongst Sea Org members became more frequent and increasingly violent, with the establishment of what Scientologists informally refer to as the “Hole”. According to one account describing Miscavige: ‘Anything could trigger his profane, belittling rants — a hitch in planning for a big event, a video he thought could have been better, any hesitation in answering his questions, a facial expression that hinted at defiance’.[34] Although the Church of Scientology vigorously denies the veracity of the plethora of conforming accounts of violence and degradation that have been reported and documented by former senior officials of Scientology, the mountain of accounts sourced from an array of sources seems to indicate that the Church of Scientology is not being entirely honest about the machinations manifested inside the “Hole”. Scientology officially refers to the “Hole” as simply, a form of “ecclesiastical discipline”, yet the sheer number and severe nature of the accounts eventually attracted the attention of the FBI.[35]

Systematic Employment of Techniques Designed to Effect Ego-Destruction, Thought Reform and Dependence on the Cult[36]

According to numerous reports, inside the “Hole” members are isolated and imprisoned under guard and are subjected to humiliation and violence. Prisoners in the “Hole” are also made to confess crimes they have not committed.[37] Such coerced confessions, many scholars argue, is geared toward achieving thought reform by taking control of the victim’s mechanisms of guilt and shame.[38] On this point, Lifton argues: ‘Once the compulsion to confess is operating, the [victim] is ready to learn a more precise formula – thought reform’s conceptual framework for his expression of guilt and repentance’.[39] The most popular example of this mind control technique amongst mainstream religions can be found within the Catholic practice of confession, although, as comedian Cathy Ladman once quipped, “All religions are the same: religion is basically guilt, with different holidays.”[40] Humiliation and degradation are common strategies for breaking down the victim’s ego in order to reshape it to serve the group’s interests over and above the sovereignty and well-being of the victim. In his article on the “Hole” in the Tampa Bay Times, Lawrence Wright wrote: ‘…it became a place of confinement and humiliation where Scientology’s management culture — always demanding — grew extreme. Inside, a who’s who of Scientology leadership went at each other with brutal tongue lashings, and even hands and fists. They intimidated each other into crawling on their knees and standing in trash cans and confessing to things they hadn’t done. They lived in degrading conditions, eating and sleeping in cramped spaces designed for office use’.[41] Such degradation and confinement are classic ego-destruction and thought reform techniques and they are reminiscent of Scientology’s earlier initiatives initiated by Hubbard.[42] In his All About Radiation, Hubbard wrote: ‘Brainwashing is a very simple mechanism. One gets a person to agree that something might be a certain way and then drives him, by introverting him and self-criticism, to the possibility that it is that way’.[43] Hubbard was clearly acquainted with mind control and brainwashing techniques, and this acquaintance was not merely reflected in the policies he put into place within Scientology but also within a 1955 letter he wrote to the FBI recommending the use of brainwashing, “psychopolitics” against the Soviets. Hubbard also claimed that Scientology, particularly the employment of the E-meter, was a means of psychologically emancipating the brainwashed, however, as more sober critics of Scientology have observed, ‘Hubbard did not actually intend Scientology to be an antidote to brainwashing. Rather…the “psychopolitics” manual was itself the very blueprint for the actual brainwashing that takes place in Scientology’.[44]

Discussing the function of ego-destruction, Breitbart and Ebner write: ‘Ego destruction is actually part of the formula for a cult mindset, according to deprogrammer and cult expert Rick Ross. By tearing down the members’ egos and critical thinking faculties, cults begin to do the members’ thinking for them. All responsibility for one’s thoughts and actions is turned over to the group’s leader; members don’t have to think for themselves. The very thing most cults promise is freedom – freedom from worry, from illness, from negativity – and they deliver it in an Orwellian fashion, freedom through thought control’.[45]

Meaningful Communication with non-Scientology Family Members Cut[46]

Scientology’s doctrine describing the “suppressive person” has led to its hyper-isolationist divisive doctrine of ‘disconnection’. A “suppressive person” is one who is deemed by officials of Scientology to be a negative hindrance to the “spiritual development” of church members.[47] This doctrine has been used to deconstruct and destroy families whose members, whether children, parents, siblings or otherwise, have left the church or refused to join. The Scientologist is effectively cut off from meaningful communication with non-Scientologist family members, and owing to the comprehensive thought reform and mind control strategies employed by Scientology, the Scientologist will more frequently than not voluntarily cut off communication with family members who are not a part of Scientology. However, beyond voluntary disconnection, Scientology also has an official policy that requires Scientologists to disconnect from non-Scientologist family members. Former Scientology official Mike Rinder reports the very wording of this policy: ‘HCOB 10 September 83 PTSNess and Disconnection states the following: “To fail or refuse to disconnect from a suppressive person not only denies the PTS (person connected to a Suppressive Person) case gain, it is also supportive of the suppressive – in itself a Suppressive Act. And it must be so labelled.”[48]

Cults employ ‘isolation’ as a strategy to control the information to which cult members are exposed, thereby controlling their cognitions, which are always kept acutely focused on serving the needs and doctrines of the cult. Some cults use isolated compounds, and here Scientology is no exception, whilst others use a diverse array of approaches to isolate cult members from non-cult influences, and again, Scientology is no exception. As well as disconnecting Scientologists from their non-Scientologist family and friends, Scientologists are forbidden from reading about Scientology on the internet,[49] which keeps their beliefs about Scientology controlled by official channels within Scientology. Here there is a similarity to the way in which North Korea protects its citizens from exposure to the cognitive dissonance occasioned by encountering critical points of view, thereby insulating and protecting the perceived integrity of the collective. Discussing cults and isolation, Burns observes: ‘Non-voluntary isolation may be imposed on cult members by the leadership or doctrine of the group. Physical separation from society and external rational references can induce loss of the individual’s reality…A subtle type of isolation is to prohibit group-members from outside influences, entertainment, associations, politics, community involvement or taking secular education. This type of censorship has an added side effect of creating a social and educational deficiency that can make it very hard for the defecting member to survive in normal society’.[50] Notwithstanding the financial burdens placed upon Sea Org members who dare to defect – who are often given a bill for accommodation and food that exceed $100,000,[51] nor even merely the dissuasive situation of having no means of financial or social support beyond the barbed wire fences of Scientology compounds, many former Scientologists have described the psychological isolation and extremely daunting experience of being on their own in normal society for the first time, disconnected from their family members and friends who all remain psychologically imprisoned within the unrelenting grasp of Scientology.[52] Along with the indoctrination and thought reform strategies used against members of Scientology that keep them isolated from society in general, such additional deterrents act as an invisible electric fence, keeping members isolated and imprisoned within the cult of Scientology.

Members put cult goals ahead of individual and society concerns[53]

The Scientologists who broke into the offices of the IRS to steal documents and bug IRS offices were certainly guilty of placing the goals of their cult ahead of both their own personal concerns and society’s. Further, Scientologists who join the Sea Org and disassociate from non-Scientology family members, who virtually abandon their own children to be raised by other members of Scientology so that the parent can focus on achieving Scientology’s (largely financial) goals are also guilty of such agentic behaviour. A means by which Scientology achieves this level of control over adherents results from the dogma that Scientology is the sole vehicle for the salvation of humankind – thus, Scientologists are indoctrinated with the belief that their work, the Church’s work, is essential for the betterment and even future existence of humankind and the world.[54] Therefore, if members must break the law by breaking into IRS offices, or physically assault wayward members, or subject themselves to physical and psychological abuse, such risks and harms are perceived as small prices to pay in the larger conceptual framework within which the Scientologist’s mind has been programmed to operate.

Members are preoccupied with fundraising, recruiting and worship/courses[55]

Scientology’s fixation on fundraising is just one of the reasons why France, given the nation’s historical context, refuses to accept Scientology as a bona fide ‘religion’.[56] The French Revolution saw the end of financial exploitation of the masses by the Catholic Church, and access to sacraments and other sacred symbolic practices became free. Thus, given Scientology’s exorbitant pricing system for its “spiritual” products, the French find it difficult to accept Scientology as a legitimate religion, as religion, according to the modern French mind, can only be bona fide if free.[57] In a famous email sent by Scientologist Debbie Cook (The Debbie Cook Email, 2011), Debbie complained about the rampant fundraising initiatives undertaken by Scientology under the auspices of David Miscavige. In that email, Debbie produced certain contradictions with LRH’s earlier teachings and she wrote: ‘Actions that are either not covered in policy or directly violate LRH policy and tech include the extreme over-regging and fund-raising activities that have become so much a part of nearly every Sea Org org and Class V org as well as every “OT Committee”. This fundraising is not covered anywhere in LRH policy. Hardworking Sea Org members and the dedicated staff of orgs around the world aren’t choosing to do these actions. Nor are the OTs. I am sure they would be more than happy if they could just get on with direct dissemination of Scientology as they have done for so many years. But the truth is that this is being driven from the very highest echelons within the Scientology structure and clearly there is a lot of pressure to make targets that are being set’.[58]

Discussing this email, Lewis states: ‘Cook begins her letter by first complaining, in some detail, about the “new age of continuous fundraising” the Church is experiencing…Most of the fundraising Cook complains about is being used to build large, expensive buildings for Scientology Orgs. These ‘Ideal Orgs’ directly contravene Hubbard’s directives against excessive investment in real estate…The email’s third complaint is that C O B had been tampering with the Bridge by, in part, requiring people to redo certain levels and by mixing together certain processes that should remain separate. The goal of these changes, Cook makes clear, is transparently to collect more fees’.[59]

Established members are guarded, vague, deceptive or secretive about beliefs, goals, demands and activities until the recruit is converted[60]

Notwithstanding her obvious pro-cult bias, Barghusen observes: ‘Many complaints by anticultists center on deceptive practices in recruitment. They charge that prospective members are not told the nature of the group until they have already formed relationships with cult members’.[61] Scientology, by its employment of cover and front organisations that bear different names, as well as other deceptive and guarding techniques, certainly meets this characteristic of ‘cult’.

In an ABC interview, chief spokesman for the Church of Scientology Tommy Davis walked out mid-interview because he was questioned about the previously esoteric, etiological myth of Xenu. In that interview, Tommy was extremely guarded and vague about Hubbard’s myth of Xenu, stating: “It is in violation of my religious beliefs to talk about them [esoteric theological doctrines such as Xenu].”[62] Commenting on this previously esoteric belief, Lewis writes: ‘Of course, the relationship between secularising forces of modernity and move towards an embracing of more ‘rational’ spiritual beliefs is significant. This is evident in response to Scientology’s Xenu mythology being published online. Previously, this esoteric facet of the church’s theology was available only to long-time members who had travelled a significant way across the ‘Bridge to Total Freedom’. However, several church members reported quitting the faith upon discovering this element of the theology, because it was, as one former member claimed, “simply too silly” to believe’.[63]

Members are Exploited with Poor Working Conditions and Low Pay[64]

Here a distinction needs to be drawn between peripheral adherents of Scientology and those who sign billion-year contracts to join Scientology’s clergy, the Sea Org. Regular scientologists, whilst still the victims of financial exploitation and isolation from meaningful communication with non-Scientology family members, are free to live relatively unencumbered lives, if one does not factor in the rigorous requirements to studying scientology, which can consume numerous hours of each day. Members of the Sea Org, however, are exploited with poor working conditions and low pay, and even children are exploited in this manner, because the doctrines of Scientology do not distinguish between adults and children. Jenna Miscavige Hill, the niece of the head of Scientology, David Miscavige, revealed that she was put to work at the age of seven and performed gruelling manual labour under coercion from adult officials in the Church.[65] Miscavige Hill’s account of her exploitation matches other similar accounts of child exploitation and the poor working conditions to which both children and adults in the Australian Sea Org have been subjected.[66] Such gruelling work conditions, often accompanied by sleep deprivation, serve a dual function: They support and further the financial goals of Scientology and at the same time they assist in the maintenance of member’s ego-destruction and continual thought reform and mind control.[67]

Member’s Finances are Exploited[68]

Scientology is structured in levels referred to as the ‘Bridge’. The introductory courses in Scientology are reasonably priced, but once the member is sufficiently indoctrinated with the desire to “go clear”, the levels become increasingly expensive.[69] To reach the final goal of Scientology can cost over a quarter of a million dollars,[70] and some Scientologists have even taken out second mortgages to reach this goal, which, according to Scientology, includes (demonstrably false) superhuman abilities like telekinesis and telepathy.[71] Further, members are constantly encouraged by way of regular telephone calls, correspondence and visits to donate on top of expenses, and wealthier members like actress Leah Remini have been persuaded out of piety to donate in the millions. L. Ron Hubbard’s initial goal of becoming rich by creating a religion seems to have paid off not merely for Hubbard but also for his successor(s), with Scientology amassing enormous troves of wealth throughout its short history. Beit-Hallahmi writes: ‘Hubbard’s financial ideals may have something to do with his estate, reportedly worth $640 million (Mallia, 1998a). They are also well reflected in the prices Scientology clients are charged, where $376,000 is the cost of reaching “total freedom” (Mallia, 1998d). Documents made public over the years show staggering profits from the operation (Behar, 1991; Passas & Castillo, 1992). Richardson (1983) reported that the estimated annual income of the Scientology organization in the US alone was $100 million. In 1993, the last time Scientology had to report, it had $398 million in assets and $300 million in annual income (Mallia, 1998a). We can safely assume that if these are the reported figures, the real figures were even higher, as taxpayers are given to underreporting (see Hubbard’s advice above). According to David Miscavige, Scientology’s CEO, winning a US tax-exemption in 1993 saved Scientology from a tax bill that could have reached $1 billion (Frantz, 1997b)’.[72] Investigative journalist Richard Behar, in his famous Time Magazine article Scientology: The Thriving Cult of Greed and Power, estimated that Scientology earned enough from its members that it was able to pay 20 million US dollars annually to over 100 lawyers and was a ‘hugely profitable global racket’ that engaged in ‘mafia-like’ intimidation against members and critics.[73]

1983 Australian High Court Ruling: Scientology as a ‘Religion’

In 1983 the Australian High Court was charged with the unprecedented duty of defining ‘religion’ in S. 116 of Australia’s Constitution. S. 116 reads: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’.[74]

Scientology was applying for tax-exempt status as a ‘religion’ in Victoria, and as discussed above, it failed on appeal to the Supreme Court of Victoria. However, the Full Court of the High Court granted Scientology tax-exemption as a recognized, bona fide religion. Each of the High Court Justices made unique attempts to define religion, yet they were confronted by two major hurdles. Firstly, religion remains notoriously difficult for experts in relevant fields to define, and secondly, none of the Justices are experts in any of the relevant fields that deal in defining religion.

Mason A-CJ and Brennan J

Both Mason A-CJ and Brennan J advanced extremely inclusivist interpretations of what may be legally held to be a religion for the purposes of S. 116 of the Federal Constitution of Australia. Both Justices acknowledge the difficulty of defining religion but in so acknowledging it may be argued that their conclusions lend insufficient consideration to the character and quality of the beliefs and practices espoused by a ‘religion’.[75] Per Mason A-CJ and Brennan J, to be considered a religion for the purposes of S. 116 of the Federal Constitution of Australia, an institution need only fulfil two criteria: It must possess “a belief in a supernatural being, thing or principle”, and secondly, it must “conduct itself in a manner that gives effect to such a belief”.[76] The problem with such a broad and near-boundless definition is that groups such as the Manson Family, Jonestown and Heaven’s Gate, to name just a few dangerous cults, would be included and eligible for “legal immunity” and financial benefits.

Murphy J

Murphy J begins his ruling by sympathizing with the scepticism aroused by the establishment of new religions due to the many legal privileges and tax exemptions that religions garner under the Australian legal system.[77] Murphy J preferred to conceptualise and define ‘religion’ for the purposes of the law in terms of ‘sufficiency’ rather than ‘necessity’.[78] ‘It is better, he says, “to state what is sufficient, even if not necessary, to bring a body which claims to be religious within the category”’.[79] In alignment with the rulings of Mason A-CJ and Brennan J, Murphy J furnished an extremely broad definition of what may be deemed a religion for the purposes of S. 116 of the Constitution of Australia. However, Murphy J went a step further than Mason A-CJ and Brennan J to expressly reject the ‘quality and character of the beliefs’ and ‘code of conduct’ as necessary criteria to establish whether Scientology was in fact a religion.[80] In other words, and not to put it too dramatically, Murphy J’s ruling could be interpreted in a manner that would afford lavish legal and financial privileges and incentives to dangerous and harmful groups, regardless of the nature and extent of their sinister intentions and practices – the very pitfall Crockett J’s overturned Victorian Supreme Court ruling sought to circumvent.

Wilson and Deane JJ

Wilson and Deane JJ both correctly reject belief in a supreme being (God) as a necessary indicium of a ‘religion’ and the Justices list a number of valid indicia which may be taken to ‘aid in the question of what a religion might be’.[81] ‘They are: belief in a supernatural, ideas which relate to man’s nature and place in the universe and his relation to things supernatural ideas that are acceptable by adherents requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices which have supernatural significance, whether the adherents constitute an identifiable group or identifiable groups, however loosely knit their beliefs and practices may be, and, finally, that the adherents themselves see the collection of ideas or practices as constituting a religion’.[82] The Justices conceded that these indicia are not necessarily determinative, but rather, that they aid in answering the question of what constitutes a religion.[83]

As with the other Justices’ rulings, Wilson and Deane JJ’s ruling gives no regard to the quality and character of the beliefs and practices, and their indicia could just as easily be applied to some of the most notorious and dangerous cults in human history. The problem with the High Court ruling lies not so much in a deficiency in the holdings of the Justices, but in both the ambiguity of the definitions and distinctions of and between religions and cults and one of the foundational principles of secularism, the doctrine of the Separation of Church and State, enshrined in S. 116 of the Federal Constitution of Australia.

Limitations on Classifying Cults Under Australian Law

The third limb of S. 116 prevents the Commonwealth from prohibiting the ‘free exercise of any religion’. The freedom of religion advocated within this limb of S. 116 underscores a secular human right also supported by Article 18 of the International Covenant on Civil and Political Rights 1976, which protects freedom of thought and conscience. Article 18 (3) places constraints upon religious freedom by making such freedom subject to the law of the land, public safety, health, morals or the fundamental rights and freedoms of others.[84] Although the ‘morality’ constraint has been used to egregiously infringe upon freedom of thought, conscience and expression, the limitations concerning the protection of the law of the land, public safety and the fundamental rights and freedoms of others ensures that a religion’s beliefs and practices do not infringe upon the human rights of adherents and others who may be negatively affected by any given religious group. These constraints could possibly serve as positive amendments to S. 116 of the Federal Constitution of Australia, which at present, along with the ruling of the High Court, pay no heed to the possible harmfulness of a religion’s beliefs and practices.

Given that within the field of studies in religion, the conceptual distinction between cults and religions is ambiguous at best and entirely conflated at worst, with many cults indistinguishable from minor religious sects and major religions indistinguishable from minor cults in their beliefs and practices (expression phenomena), one can hardly expect legislative and judicial authorities to enact clear legal demarcations between the two without infringing upon the sacred secular principle of the Separation of Church and State.

Conclusion

The Hubbard Association of Scientologists International began as an expressly secular organization. The earliest editions of Dianetics, the book upon which Scientology rests, bore no hallmarks of a religious text. Given the timing of the Hubbard Association of Scientologists’ transformation into a self-described religious organization, their seemingly calculated name change and use of religious language, symbols and practices, their apparent legal and financial motivations for doing so, coupled with their initial and express resistance to be labelled a religion, Crockett J’s rejection of Scientology’s application for tax-exemption as a religious institution seems more sensible than the Australian High Court ruling that overturned his verdict. The High Court Justices deficient ruling does not necessarily reflect the short-sightedness or errant conclusions of the Justices, who all aired on the side of caution, defining ‘religion’ in the broadest sense possible, but rather, such a verdict appears to be constrained by a valuable secular principle, i.e., the Separation of Church and State.

Notwithstanding the verdict of the High Court, the Church of Scientology clearly and accurately embodies and reflects the indicia which aid in the identification of a cult. However, as mentioned, for the purposes of the law the distinction between cult and religion may be nearly impossible to determine without infringing upon the Separation of Church and State, because should the state begin dictating what is and what is not a religion, the wall separating religion and the state could be effectively undermined. Having made this concession, the legal distinction between cult and religion may be rendered irrelevant if the focus and emphasis in secular countries is shifted from protecting religious freedoms to harbouring human rights. A means of achieving this shift in an Australian context could be to amend S. 116 of the Federal Constitution of Australia to include exclusion clauses that prevent harmful, sinister and abusive organizations from attaining the social, legal and financial privileges which accompany the legal status of ‘religion’, thereby adequately protecting individuals from such organizations and institutions that engage in not only cynical yet legal tax evasion, but systemic and institutionalized abuse of members and dissidents. By borrowing from Article 18 (3) of the International Covenant on Civil and Political Rights 1976, the Federal Constitution of Australia could be amended to maintain religious freedom whilst simultaneously protecting the law of the land, public safety and the fundamental rights and freedoms of adherents, dissidents and other citizens who may be negatively affected by the beliefs and practices of a self-described religious institution. Such an amendment could possibly provide a sufficient deterrent for groups and organizations that freely engage in harmful and human rights-infringing practices.

End Notes

Sam Moskowitz, Affidavit, regarding the Eastern Science Fiction Association meeting of November 11, 1948, that Hubbard made this statement, April 14, 1993, cited in: Pastor David Chakranarayan, Scientology (Thetanism/Church of Scientology/Hubbardism), in: Bodie Hodge (ed) and Roger Patterson (ed), World Religions and Cults: Atheistic and Humanistic Religions, Vol. 3, Green Forest, AR: New Leaf Publishing Inc., 2016, p. 96. Stephen A. Kent, Scientology’s Recruitment Policies Targeting Celebrities, in: Stephen A. Kent (ed) and Susan Reine (ed), Scientology in Popular Culture: Influences and Struggles for Legitimacy, Santa Barbara, CA: ABC-CLIO, LLC, 2017, p. 84. Rodney Stark and William Sims Bainbridge, The Future of Religion: Secularization, Revival, and Cult Formation, Berkeley: University of California Press, 1985, p. 513. Ron Hubbard, The Creation of Human Ability: A Handbook for Scientologists, 1955, p. 251, cited in: Marco Frenschkowski, Images of Religions and Religious History in the Works of L. Ron Hubbard, in: James R. Lewis (ed), Handbook of Scientology, Leiden: Brill, 2017, p. 106. Ron Hubbard, Letter to Helen O’Brien, 1953, cited in: Hugh B. Urban, The Church of Scientology: A History of a New Religion, Princeton, NJ: Princeton University Press, 2011, p. 65. Paul Finkelman (ed), Religion and American Law: An Encyclopedia, London: Routledge, 2000, p. 513. Stephen Schwartz and James J. Fishman, Nonprofit Organizations, US: West Academic, 1999, p. 495. Stephen A. Kent (ed) and Susan Reine (ed), Scientology in Popular Culture: Influences and Struggles for Legitimacy, Santa Barbara, CA: ABC-CLIO, LLC, 2017, p. xiii. Ibid. James R. Lewis (ed), Handbook of Scientology, Leiden: Brill, 2017, p. 249. Ibid. p. 259. CHURCH OF THE NEW FAITH v. COMMISSIONER FOR PAY -ROLL TAX, cited in: Melbourne University Law Review, Vol. 14, December 1983, p. 318. Ibid. p. 319. Ibid. Harold Coward (ed) and Daniel C. Maguire (ed), Visions of a New Earth: Religious Perspectives on Population, Consumption, and Ecology, Albany: State University of New York Press, 2000, p. 3. John Scott (ed), Sociology: The Key Concepts, Abingdon: Oxon: Routledge, 2006, p. 142. James C. Livingston, What is Religion? cited in: James C. Livingston, Anatomy of the Sacred: An Introduction to Religion, 6th, Upper Saddle River, NJ: Pearson-Prentice Hall, 2009, p. 6. Ibid. p. 5. Rachael Kohn, Cults and the New Age in Australia, in: Gary Bouma (ed), Many Religions, All Australian: Religious Settlement, Identity and Cultural Diversity, Kew, Victoria: The Christian Research Association, 1996, p. 154. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 65. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66; Eric Hickey (ed), Encyclopedia of Murder and Violent Crime, Thousand Oaks, CA: Sage Publications, 2003, p. 108. Hugh B. Urban, The Church of Scientology: A History of a New Religion, Princeton: Princeton University Press, 2011, p. 139; James R. Lewis (ed), Scientology, Oxford: Oxford University Press, 2009, p. 378. Jason Guerrasio, ‘The chilling story of how Scientology founder L. Ron Hubbard rose to power’, Business Insider Australia, April 1, 2015, cited at: https://www.businessinsider.com.au/l-ron-hubbard-history-sci-fi-writer-to-scientology-founder-2015-3, accessed on 20 April, 2017. James R. Lewis (ed), Scientology, Oxford: Oxford University Press, 2009, p. 232. Ibid. p. 5. Ibid. p. 232. Ibid. p. 376. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. Benjamin Zablocki, Towards a Demystifying and Disinterested Scientific Theory of Brainwashing, in: Benjamin Zablocki (ed) and Thomas Robbins (ed), Misunderstanding Cults: Searching for Objectivity in a Controversial Field, Toronto: University of Toronto Press, 2001, p. 160. Ibid. Jean-Marie Abgrall, Soul-Snatchers: The Mechanics of Cults, New York: Algora Publishing, 2000, pp. 134-135. Janet Reitman, Inside Scientology: The Story of America’s Most Secretive Religion, Boston: Houghton, Mifflin, Harcourt, 2011, p. 93. Ibid; Gabriel J. Gomes, Discovering World Religions: A Guide for the Inquiring Reader, Bloomington: IUniverse, Inc., 2012, p. 395. Lawrence Wright, ‘Scientology defectors describe violence, humiliation in the “Hole”’, Tampa Bay Times, January 12, 2013, cited at: http://www.tampabay.com/news/scientology/scientology-defectors-describe-violence-humiliation-in-the-hole/1270047, accessed on 20 April, 2017. Ibid. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. Tony Ortega, ‘Mike Rinder on the “Hole,” Indoctrinations, Confessions, and His Ultimate Escape’, The Village Voice, April 4, 2012, cited at: https://www.villagevoice.com/2012/04/04/mike-rinder-on-the-hole-indoctrination-confessions-and-his-ultimate-escape/, accessed on 4 July, 2017. Xing Lu, Rhetoric of the Chinese Cultural Revolution: The Impact on Chinese Thought, Culture, and Communication, Columbia: University of South Carolina Press, 2004, p. 42. Robert Jay Lifton, Thought Reform and the Psychology of Totalism: A Study of ‘Brainwashing’ in China, Chapel Hill: University of North Carolina Press, 1989, p. 75. Cathy Ladman, cited in: Richard Dawkins, The God Delusion, London: Black Swan, 2016, p. 195. Lawrence Wright, ‘Scientology defectors describe violence, humiliation in “the Hole”’, Tampa Bay Times, January 12, 2013, cited at: http://www.tampabay.com/news/scientology/scientology-defectors-describe-violence-humiliation-in-the-hole/1270047, accessed on 5 July, 2017. David Chidester, Salvation and Suicide: Jim Jones, The Peoples Temple, and Jonestown, Bloomington: Indiana University Press, 2003, p. 29. Hugh B. Urban, The Church of Scientology: A History of a New Religion, Princeton: Princeton University Press, 2011, p. 139; James R. Lewis (ed), Scientology, Oxford: Oxford University Press, 2009, p. 86. Ibid. p. 94. Andrew Breitbart and Mark Ebner, Hollywood, Interrupted: Insanity Chic in Babylon – The Case Against Celebrity, Hoboken, NJ: John Wiley & Sons, Inc, 2004, p. 109. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. James R. Lewis (ed), Scientology, Oxford: Oxford University Press, 2009, p. 10. Mike Rinder, ‘Scientology Disconnection’, Mike Rinder’s Blog, June 8, 2016, cited at: http://www.mikerindersblog.org/scientology-disconnection/, accessed on 20 April, 2017. Dana Kennedy, Katie Holmes ‘Biggest Nightmare’ in Scientology History, Say Experts, The Hollywood Reporter, 4 July, 2012, accessed on 1 July, 2017; James R. Lewis (ed), Scientology, Oxford: Oxford University Press, 2009, p. 370. Craig Burns, Exit from Soul-Abuse: Redefining Extremist Cults, Victoria, BC: Trafford Publishing, 2012, p. 200. Lawrence Wright, ‘What happens when you try to leave the Church of Scientology?’, The Guardian, 23 April, 2011, cited at: https://www.theguardian.com/world/2011/apr/23/try-to-leave-church-scientology-lawrence-wright, accessed on 25 June, 2017. Leah Remini, Scientology and The Aftermath, A&E Network, Documentary TV Series, 2016~. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. Tom Cruise Interview About Scientology, cited at: https://www.youtube.com/watch?v=UFBZ_uAbxS0, accessed on 3 July, 2017. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. James R. Lewis (ed), Scientology, Oxford: Oxford University Press, 2009, p. 316. Ibid. The Debbie Cook Email, Tuesday, 05 March 2013, cited at: http://www.scientology-cult.com/debbie-cooks-email.html, accessed on 1 July, 2017. James R. Lewis (ed), Handbook of Scientology, Leiden: Brill, 2017, p. 474. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. Joan D. Barghusen, Cults, Lucent Books, 1998, p. 31. ABC Interview with Tommy Davis, cited at: https://www.youtube.com/watch?v=fqzmbnrglUg, accessed on 3 July, 2017. James R. Lewis (ed), Handbook of Scientology, Leiden: Brill, 2017, p. 194. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. Jenna Miscavige Hill and Lisa Pulitzer, Beyond Belief: My Secret Life Inside Scientology and my Harrowing Escape, New York: William Morrow, 2013, pp. 1, 61, 133, 364. Ibid; ‘Scientology, RPF, Child Labour Camp’, Today Tonight, Channel 7, 14 Feb., 2012, cited at: https://www.youtube.com/watch?v=7yAtnYwB5XQ, accessed on 20 April, 2017; Janet Reitman, Inside Scientology: The Story of America’s Most Secretive Religion, Boston: Houghton, Mifflin, Harcourt, 2011, pp. 108, 278, 323. Jin Zeng, State-Led Privatisation in China: The Politics of Economic Reform, London: Routledge, 2013, p. 26; Helena K. Rene, China’s Sent-Down Generation: Public Administration and the Legacies of Mao’s Rustication Program, Washington D.C.: Georgetown University Press, 2013, p. 91; Georgen Guerrero, Prison-Based Educational and Vocational Training Programs, in: Lior Gideon (ed) and Hung-En Sung (ed), Rethinking Corrections: Rehabilitation, Reentry, and Reintegration, Los Angeles: Sage, 2011, p. 208. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Sydney: J.S. McMillan Pty Ltd., 1998, p. 66. Liselotte Frisk, The Relative Success of the Church of Scientology, in: James R. Lewis (ed), Handbook of Scientology, Leiden: Brill, 2017, p. 166. Ibid. p. 167. Ibid. p. 487; Janet Reitman, Inside Scientology: The Story of America’s Most Secretive Religion, Boston: Houghton, Mifflin, Harcourt, 2011, p. 304. Benjamin Beit-Hallahmi, ‘Scientology: Religion or Racket?’, Marburg Journal of Religion, Vol. 8, No. 1, (Sept., 2003), p. 19. Richard Behar, ‘Scientology: Thriving Cult of Greed and Power’, Time Magazine, May, 1991, cited in: Michelangelo Signorile, Sex, the Media, and the Closets of Power in America, Madison: The University of Wisconsin Press, 1993, p. 275. Commonwealth of Australia Constitution Act – Sect 116, Commonwealth not to legislate in respect to religion, Commonwealth Consolidated Acts, cited at: http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s116.html, accessed on 10 April, 2017. ‘An Australian Definition of Religion’, UNSW Law Journal, Vol. 14 (2), 1991, pp. 332-351. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Article 18 (3), International Covenant on Civil and Political Rights 1976, cited at: https://www.humanrights.gov.au/international-covenant-civil-and-political-rights-human-rights-your-fingertips-human-rights-your, accessed on 2 July, 2017

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