Presumption Of Religion In Australia

The Australian legal system confers tacit approval for the spreading of religion by bestowing charitable status upon religions, resulting in fiscal and symbolic advantage, under the presumption of public benefit. The historical underpinnings of this concept have become increasingly scrutinised due to changing religious perspectives in Australia: growth in the number and variety of religions as well as people indicating atheist and agnostic viewpoints. Hence, the presumption of public benefit is increasingly controversial, open to challenge and subject to both social and legal commentary. This paper considers the historical and modern perspectives regarding the perpetuation of charitable status for the advancement of religion under the Charities

Benefits to Religions Granted Charitable Status

Charitable trusts for the advancement of religion are given tax-exempt financial status, which amounts to a government subsidy worth billions of dollars borne by the taxpayer. However, this long-standing advantage deserves scrutiny as there is little accountability to the public as to how these funds are used, bringing into question the legitimacy of the presumption of public benefit.

Kirby J’s dissenting judgement in Federal Commissioner of Taxation v Word Investments Ltd reflects upon the impact of shifting religious attitudes and fiscal benefits afforded to religious charities by the legal system, commenting that the activities of religious institutions can be ‘offensive to the beliefs, values and consciences’ of taxpayers. Indeed, Kirby J quotes Thomas Jefferson’s Virginia Statute of Religious Freedom that ‘to compel a man to confer contributions of money for propagations of opinions which he disbelieves, is sinful and tyrannical’ to support his stance. These opinions demonstrate that opposition to the concept of compelling the public to fund the spreading of religion has been a long-standing challenge. However, it has persisted through indirect means in Australia by providing tax-exempt charity status for advancing religion, despite the way these funds are utilised being opaque to the taxpayer and shielded from the public gaze. Thus, the Australian legal system should at minimum, legitimise these tax exemptions by

The courts are not concerned with the relative truth or legitimacy of the faiths claiming charitable status, as they must be seen to maintain legal neutrality. However, this tolerance has resulted in wide judicial interpretation of what can be deemed a religion. Further, what can be claimed as ‘advancement of religion’ is not defined by statute, but rather is based on a historical stream of case law. Thus, combined with the presumption of public benefit, this has resulted in the granting of charitable trust status for numerous dubious faiths with highly doubtful public benefit. For example, in Thornton v Howe, the distribution of the works of Joanna Southcott, who claimed to be impregnated by the Holy Ghost, was held to be charitable, despite the court describing her as a ‘foolish and ignorant woman’. Further, in Re Watson , Plowman J granted charitable status to the publication of the religious writings of a retired builder, the theoretical merits of which were questionable and recognised by only a very small group of followers. For these reasons, the enduring presumption by the courts that all activities for the advancement of religion confer public benefit is highly questionable and should be open to challenge, principally due to ‘the ever-expanding definition of