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Cults and Religious Privileges in
England and Australia: Can the Wheat be Separated from the Chaff?
Stephen Bruce Mutch, M.A., LLB
Abstract
This paper explores whether it is feasible in Australia to establish an
adjudicative tribunal whereby harmful or deviant religious groups might be
disqualified from receiving fiscal privileges provided to religions generally.
The difficult question of the legal definition of religion, which generally
includes groups pejoratively characterised as cults, is examined. Alternative
approaches of entity disqualification by definition or an inclusive definition
with subsequent policy disqualifications are discussed. It is concluded that
religion is a term best utilized, if at all, as a tool of broad prima facie
classification only, to which transparent public policy parameters might then be
applied in different legislative contexts. Charity law is presented as an
example of a legal context in which public policy criteria are applied to
questions of entitlement. The gate keeping functions of the Charity Commission
for England and Wales are presented as a model for a prospective adjudicative
tribunal in the Australian Commonwealth. Community protections found in the UK
Charities Act 1993 and Article 9 (2) of the European Convention on Human Rights
and Fundamental Freedoms 1950 are noted with approval. The potential impediment
of s. 116 of the Australian Constitution Act 1900, which entrenches notions of
free exercise and non-establishment, is also examined. It is concluded that
interpretations of s. 116 requiring a non-discriminatory/neutral aid approach,
or a strict separation of church and state, will be unlikely to prevail.
Therefore it would be feasible, although not without some risk of judicial
intervention, for the Commonwealth to establish a definitions tribunal dealing
inter alia with religious applicants for Commonwealth fiscal dispensations.
However, the existence of s. 116 would make it unlikely for State governments,
which are unaffected by the section, to submit cooperatively to a Commonwealth
definitions entitlement tribunal dealing with third sector entities which
include by definition religious groups.
Full text available through
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