 Well it takes a whole village to raise a professor and so I would like to take this opportunity as well to thank my law school village and acknowledge particularly my female colleagues. Peter is one of them and my junior colleagues have been so supportive of me in preparing for this talk and so I've had their example and support over many years and I want to acknowledge particularly as well the support and mentoring given by the late Philippa Weeks. I think she'd be proud of the number of strong female academics in the College of Law now. So I'll use this talk to explain the research project that will be the focus of my sabbatical next semester and it concerns a subject that's dear to my heart but that I've only really dipped into throughout my career. So in part this is a retrospective but you'll see that I still have lots of unresolved questions to answer and I'm interested in how the state through the law regulates and controls religious groups and their members in the financing of their religious activities and of course this is quite topical fortuitously at the moment. So I'll begin by sketching in the factual context. Like all not-for-profit groups religious groups need to finance their core activities such as worship, prayer, ritual, religious education and perhaps proselytising and evangelism. There are buildings to erect and maintain, workers to pay, religious texts to produce and so on. Put simply the collective manifestation of religious belief costs money. For some religious believers all aspects of their life are a manifestation of their faith and would be described by them as religious activity. Similarly many religious groups engage in socially beneficial activity that is motivated by religious faith such as caring for the sick or the elderly. Providing education. But I'm focusing on activity that is inherently and indisputably religious in nature. So how do religious groups finance these activities? Well three common sources of funds are donations of group members, the religious believers, investment income and community fundraising. The value of almost all these sources of funding is boosted by the assistance of the state. That is by federal, state and territory government provision of fiscal privileges. So I'll say a little more on each of these points. Giving of one's resources financial or otherwise to one's religious group is an expected practice in many religions. The means can be sophisticated and large-scale involving instantaneous electronic bank transfers as well as long-term direct debits. Substantial one-off donations can be made by direct gift or by way of a charitable trust for the advancement of religion and they can happen during the believer's lifetime or by will. Investment income is a significant revenue stream for mainstream established religious groups in Australia. Landholdings for example can be extremely valuable particularly where they've become unnecessary for congregational use and can be leased out or redeveloped. Investment income is tax-free if employed for charitable purposes such as the advancement of religion. In relation to community fundraising we shouldn't think primarily of cake stalls and church fates. We should think of wheat picks. Most people would be familiar with the fact that sanitarium, the sanitarium health and well-being company was established by the Seventh-day Adventist Church and its prophets are directed to the church's charitable purposes. So there's a clear nexus between the manufacturer of health foods and the Adventist beliefs concerning a biblical mandate to eat plant-based foods. Just put in a plunk for vegetarians there but under Australian law charities may engage in commercial activity that is unrelated to the purposes of the charitable entity so long as all prophets are directed to those charitable purposes. Thus a company limited by guarantee whose sole activities were financial investment and a funeral business was held by the High Court in 2008 to be entitled to income tax exemption because all of its prophets were directed to the financing of Bible translation missionary work. So it's no secret that religious groups minimise their costs and increase income by availing themselves of legal and fiscal privileges particularly through charitable status. Charities registered with the Australian Charities and Not-for-profit Commission are exempt from the payment of income tax and this includes entities whose charitable status comes from their purposes being for the advancement of religion. States, territories and local government also provide a range of benefits such as exemptions from payroll tax and rates. So turning to the law there's a large and ancient body of law, fascinating body of law, relevant to religious financing. It encompasses judicial decisions, domestic legislation and international human rights instruments. Most of that law concerns charity and charitable trusts specifically the charitable purpose of advancement of religion. The common law of charity is complicated by an overlay of legislation including the Charities Act 2013 common effect. The dominant paradigm for determining charitable status requires public benefit and it's presumed that purposes for the advancement of religion provide a public benefit. Moving away from charity law the equitable doctrine of undue influence presumes that a large gift made during the religious believer's lifetime to a religious leader or religious group is the result of undue spiritual influence. The gift cannot stand unless this presumption is rebutted. Testumentary gifts on the other hand are not subject to such a presumption but are more vulnerable to family provision legislation that prioritizes the financial needs of disinherited family members over the believer's religious autonomy. Australian law is also infused with human rights norms in relation to freedom of religion. The most explicit source of such norms is the international covenant on civil and political rights, the ICCPR, ratified by Australia in 1980 although not yet incorporated into domestic law at the federal level. Article 181 provides for the freedom to manifest one's religion either individually or collectively and you can see that towards the end of the article to manifest religion or belief in worship, observance, practice and teaching. Articles 2 and 26 of the ICCPR protect the right to freedom of religion in relation to discrimination against religion or amongst religious groups. At the constitutional level Tasmania in its Constitution Act guarantees the free profession and practice of religion subject to public order and morality whereas section 116 of the Commonwealth Constitution only protects freedom of religion through limiting Commonwealth legislative power. There are no other entrenched constitutional protections of freedom of religion although Victoria and the ACT have implemented the ICCPR to a limited extent and Queensland is about to. A right to freedom of religion is also recognized at an informal normative level in the common law by judges. Whatever the source of the right to freedom of religion the template is the same. The statement of a general right followed by qualifications in relation to the manifestation of religion and I'll come back to that point. Well so far in my career I've considered religious financing law in a piecemeal fashion but now my objective in my sabbatical is to pull together the disparate threads and construct a coherent conceptual framework that identifies the key themes or concepts of this law and their relationship to each other so this is my research question I'm just going to take off my jacket we're getting down to business now I mean what could be what could be so hard you know what are the animating concepts of the law's regulation of religious financing how do they relate to each other and why that should be doable in six months so the project is primarily an internal legal analysis of the relevant law but I'll enrich that analysis by situating the law within its historical and social context. Understanding the law in this way is an essential first step before meaningful interdisciplinary and policy work can be done. So I'm still in the introduction folks sorry but I want to just talk now about bias I'm not sure which way that arrow is facing but disregard there's no subliminal message there so it's important to acknowledge where I'm coming from and ways in which my understanding of the subject might be influenced by my own acculturation. Academies don't normally do this certainly not at private law conferences which is where I'm normally speaking so it feels a bit strange but my experience of law and religion conferences is that scholarly presentations are often driven by unarticulated ideological interests and I think there should be acknowledgement of that because checking for hidden agendas is distracting and it's tiring for the listener so I'm thinking of you here as I put myself on the line so I grew up in a Roman Catholic home as an adult I worshipped in the uniting church for a long time I'm still connected to that community and I serve on one of the uniting church's internal tribunals but I now belong to a contemplative church that practices Christian meditation like many of my generation I reject religious fundamentalism and dogmatism and I'm very wary of religious institutions but I consider that religious faith or more generally spirituality is a ubiquitous and valuable dimension of the human condition so what I want to do for the remainder of the talk is identify and explain what at this stage I think are the animating themes of the relevant law and I'll give a few illustrations from charity and not for profit law although I've been madly striking stuff out so limited illustrations in order to fit within the time so the conceptual framework then well in essence I think there are four main concepts at play in this law control neutrality autonomy and public benefit that is state control of religious activity neutrality towards religion and as between religions how religious autonomy freedom of religion is balanced with state interests and competing human rights and the public benefit of religion and its converse public detriment so I'm a visual person and the way I see these themes relating to each other the conceptual framework is as four concentric circles although I've wasted a lot of time on whether it should really be a Venn diagram with a box and three concentric circles so my starting point then and the first circle so the one that is most pervasive and the premise upon which the whole of this law becomes intelligible I think is that religious financing law is a means by which the state controls the behavior of religious groups and induces them to comply with state interests this area of law facilitates the peaceful coexistence of religion with the secular state that is fundamentally its rationale there's a symbiotic relationship between religion and secular state in this legal sphere the two potential rivals coexist often to their mutual benefit but not always historically that's very clear charity law in particular was used to protect state interests by banning or deterring unwanted religious activity you might have thought that function would diminish with the growth in religious toleration but in fact it's still the case that charity and not-for-profit law are used in this way and in fact this accords with the nature of charity law it facilitates activities that are beneficial to society the clearest modern examples of state control come from English law and I can explain why later if you want what we see in modern English charity law is a cracking down on collective religious activity that is conducted in private two examples in 2010 the druid network sought charitable status the network's definition of druidry stated as is true of any mystical religious tradition the deeper mysteries and practices that practices that would be confusing or detrimental to the novice are retained in the privacy of personal practice in close relationships well the charity commission of England and Wales expressed concern about this that it meant some druid rituals and practices were private and not available to all in response and in order to secure charitable status the druid network simply amended its constitution and by implication its practices there are no occult secret or hidden practices within druidry teachings are open to all and the commission registered as a charity so you can see their website and on the on this side the druid network is a registered charity in England and Wales all contributions gratefully received this is a simple example of a new religious group molding its activities and returned for state benefits but also of what seems to have been an amicable negotiation to an acceptable solution the more recent interaction of the charity commission with the Plymouth Brethren Christian Church the PBCC or brethren involved a much more difficult scenario in 2012 as a test case the commission refused charitable status to a trust of a brethren meeting hall in Devon now I'm I'm told by Google images this is a brethren meeting hall but I think it's in Sussex and I'm just going with Google images the eventual grounds relied upon by the commission were that the benefits of the trust went to a private group because of limited public access to the hall and because the group's doctrines precluded engagement with the wider public and therefore it was said precluded any benefit to the public well as you can imagine there was extensive media coverage a political storm and a public relations nightmare for the charity commission and the matter was settled by the parties the brethren varied the trust deed and revised their statement of their doctrines and practices that is they significantly I would respectfully say modified their religious practices in order to secure the advantages of charitable status and the commission accepted this in order to secure regulatory power over the group that is it was in both parties interest to reach a settlement this can clearly be seen in the commission's reasons for decision if the trustees do not comply with the trust the commission will be able to regulate on the basis of a breach of trust if the trustees are unable to comply with and carry out the trust the commission may regulate on the basis of the C pray occasion has arisen and the trust property will be applied for charitable purposes of a similar nature and so that that story is still being played out and I know Bernadotte who's here from Sir Marx is sociologist of religion and very interested in what's happening at the moment in that relationship between charity commission and the pbcc so neutrality the second circle in my framework concerns neutrality towards religion generally and between religions neutrality questions I think can be separated into three overlapping types concerning the neutrality of judges the law and the state now the high court in the case of church of the new faith and commissioner for payroll tax concerning whether Scientology was a religion for the purposes of an exemption from payroll tax recognized that quote the acculturation of a judge in one religious environment will impede his understanding of others and there are many examples of judicial religious acculturation operating to the detriment of minority religions as well it must be said of judicial openness to religious difference and that topic is a research project in itself I bags it so judicial religious literacy is important as well as presentation of expert evidence they ensure judicial neutrality judicial neutrality is also promoted through the principle that generally judges do not consider the merits or otherwise of the religious beliefs in question so for example justice Keith Mason has referred to the need for judicial agnosticism neutrality of the law rather than of an individual judge is more problematic as the impact of discrimination between religions or against religion generally is more insidious when embedded in the law itself and it's also quite difficult to pin down when there is embedded discrimination for example Lord Reed in the 1949 House of Lords case of Gilmore and Coates said this he gives a statement about the law showing no preference in this matter to any church or other religious body where a belief is accepted by some and rejected by others the law can neither accept nor reject it must remain neutral this sounds admirable and very neutral but the case itself is often cited as an example of embedded bias against Roman Catholic practices the House rejected the claim by a Carmelite order of enclosed nuns that its purposes were charitable on the grounds that the benefits of intercessory prayer are not provable in a court of law and evidence of edification of Roman Catholics generally from the nun's example was too intangible to be accepted that is legal neutrality itself was used to refuse charitable status now the reasoning in Gilmore and Coates is susceptible to various interpretations but I suspect social and cultural context are part of the explanation the Irish courts have had no problem at all in finding public benefit from such purposes and nor I would suggest would the Australian courts the issue is only relevant in Australian trust law now and not actually for tax purposes as almost the only legislative reform to charity law that the Howard government was prepared to make following an extensive review of charity law was to remove the public benefit requirement and hence entrench charitable status if an entity quote is a closed or contemplative religious order that regularly undertakes prayerful intervention at the request of members of the general public end quote so that shows the political influence of the church at that time and it's very convenient for enclosed orders so the third form of sorry I'll skip that slide I was going to give you another example but I don't think I'll have time so the third form of neutrality in this circle concerns the neutrality of the state towards and amongst religions that is the constitutional context of religious financing Australia's constitutional framework in this respect is different to that for example in the United States although people often assume that you know we're the same the constitution in section 116 protects religious equality and freedom by restricting Commonwealth legislative power and this doesn't prevent the Commonwealth from giving aid to or encouraging religion thus the majority of the high court held in the defense of government schools case that Commonwealth legislation providing education funding to non-government religious schools was valid state neutrality issues also arise in relation to the favoring of particular religious groups and of course there isn't an unwavering dichotomy between the secular state on the one hand and religion on the other despite what I might have been suggesting so far it's more likely to be the case that a politically powerful established religious group aligns itself with the state in order to exclude or suppress other groups his an historical example of this in Australia is the Commonwealth suppression of the Jehovah's Witnesses during World War II at the instigation of the Roman Catholic Church so the third concentric circle in my framework concerns the tension between religious autonomy or freedom of religion I used autonomy because it's one word instead of three on my slide the tension between freedom of religion on the one hand and the interests of the state and its citizens as a whole on the other what's the appropriate balance does the law impermissibly interfere with freedom of religion or discriminate on the basis of religion if it withdraws fiscal privileges from a religious group or strikes down a gift from religious believer to religious leader so these questions are obscured in the current Australian law of religious financing by at least two factors first there's a real question whether state restrictions on religious financing rather than on religious activity directly infringes the right to freedom of religion at all or the right not to be discriminated against after all other than in extreme cases making it more difficult to fund one's religious activity doesn't necessarily preclude that activity for an example of an extreme case there was one in France in the last decade in relation to the Jehovah's Witnesses the French tax department imposed a 60 tax on religious donations to the Jehovah's Witnesses and then added an 80 penalty for late payment so they were essentially taxed into insolvency the second factor which has obscured the issue of freedom of religion in Australia is that the ICCPR has not been implemented fully at the Commonwealth level we do not have a Bill of Rights and it seems unlikely that we're going to get one soon and other protection for freedom of religion specifically is fragmented and this that might change in light of the lead to recommendations of the Ruddock religious freedom review recommendation 15 is that there be a religious discrimination act uh note not a Bill of Rights what is clear however is that wherever and how so ever expressed the right to manifest religious beliefs is qualified according to human rights norms it is legitimate for the state to restrict the collective manifestation of religious belief so long as it does so on permitted grounds and so long as it does not discriminate on the basis of religion article 18 3 for example of the ICCPR provides that freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety order health or morals or the fundamental rights and freedoms of others so this balancing of religion freedom of religion with the interests of the state and religious financing law has been tested in the English context with respect to the European Convention for the Protection of Human Rights and Fundamental Freedoms so the Gallagher litigation concerned the Preston Temple of the Church of Jesus Christ of Latter-day Saints there are only two such temples in England and only the most devout Mormons are allowed to enter those who hold a recommend the church receives an 80 exemption from rates on the temple due to its charitable status but it was refused to complete exemption from rates because its temple was not a place of public religious worship pursuant to the local government finance act the house of lords considered whether the refusal to grant a full exemption amounted to discrimination pursuant to article 14 of the convention because it came within the ambit of article nine the right to freedom of religion only lord scott found that there was an element of discrimination on the facts but he held that it was justified because of the need for openness in religious practices in a pluralist society and this is a long quote which i won't read out the whole thing but he's talking about secrecy in religious practices and providing the soil in which suspicions and unfounded prejudices can take root and grow and he concludes i can see every reason why a state should adopt a general policy under which fiscal relief for premises used for religious worship is available where the premises are open to the general public and is withheld where they are not so the european court of human rights affirmed the state's refusal to grant the full rates exemption referring to the wide margin of appreciation according to states in this jurisprudence now the church still received a substantial rates exemption based on its charitable status and so far as i'm aware it didn't change its practices regarding access to the temple interestingly the preston temple appears to have a terrific public reputation this is a trip it's got a trip advisor certificate of excellence which is clearly clearly good evidence of that because it has beautiful gardens which are open to the public so this that particular issue the meaning of place of public religious worship has been decided differently in australia so far and in fact there are historical reasons why place of public worship doesn't actually mean what you think you might think it means in 1987 in canterbury municipal council and muslim alawi society the high court held that to interpret place of public worship in a council planning ordinance as requiring access by the general public would be inconsistent with quote currently accepted standards of religious equality and tolerance in this country end quote so i think that's a good example of a judicial norm of freedom of religion in forming statutory interpretation so the fourth circle of my conceptual framework goes to the core of religious financing law and i think it's it's actually much more prominent in the law than the third circle in fact i'm i've agonized over whether to switch these around um it concerns how the law determines the public benefit or otherwise of religion of what value to society as a whole is the collective manifestation of religious belief through explicitly religious activities this is the unresolved question of charity law not for profit law and less explicitly of the law governing gifts from a believer to their religious group charity law in australia for reasons of history and political expediency largely avoids the inquiry by presuming that the advancement of religion is a public benefit the english parliament however abolished this presumption in 2006 religious groups must prove that they provide a public benefit and that exercise has proved very difficult and costly some religious groups in australia are currently investing a great deal of time and money into documenting the economic benefits to the public of religious activity and i suspect that such an exercise has limited persuasive value although i don't want to suggest that the economic benefits don't exist but for any example of benefit there will be a counter example furthermore the issue is politically charged and divisive so what follows from here are really tentative thoughts i'm still thinking this through i've certainly argued in the past that it's more helpful to consider the public benefit of religion at an abstract non-specific level and there's an analogous president in the high court's approach to aid watch in the high court's approach in aid watch incorporated and federal commissioner of taxation the court in that case was determining the charitable status of groups who pursue their charitable objectives through political activity in that case lobbying in aid watch the court held that it was not necessary to evaluate the merits of aid watch's lobbying to improve which was to improve commonwealth funding of overseas aid projects instead the court said it was sufficient that political lobbying was an integral part of australia's constitutional processes and thus contributed to the public welfare analogously one could argue that purely religious activity and religious pluralism contribute to a healthy flourishing society and thus the public benefit what do you reckon it's here that the human rights discourse on freedom of religion may help in that discourse the emphasis is on freedom of religion as an essential component of a democratic society and for instance the european court of human rights has said this a freedom of religion and i'm wondering whether we can extend this sentiment to religious activity per se so the court said and they've repeatedly said this freedom of religion is one of the most vital elements that go to make up the identity of believers and their conception of life but it is also a precious asset for atheists agnostics skeptics and the unconcerned the pluralism indissociable from a democratic society which has been dearly won over the centuries depends on it this still leaves us with the problem of public detriment from religion that is whether a religious group collectively rather than particular individuals within the group harm cause harm to the public criminal law rather than religious financing law obviously has a role to play particularly in relation to individuals but in the wake of the royal commission into institutional responses to child sexual abuse who can deny that religious communities may provide fertile ground for evil to occur more generally spiritual influence can be extremely powerful and subject to exploitation and abuse and the doctrine of undue influence gives us many examples of that so how do we determine public detriment well the 1862 English Court of Chartery decision in Thornton and Howe gives us one yard stick the good-looking man there is Sir John Romely master of the roles at the time I did a historical law and religion study of him he's a great guy and he set up the national archives in England so all historians should be fans Sir John Romely referred to doctrine's adverse to the very foundations of all religion and subversive of all morality as an instance where the court would not enforce a charitable trust that's one possible test article 18 3 which I've referred to already talks about public safety order health or morals or the fundamental rights and freedoms of others as public interest deserving of protection which implies that religious activity that threatens these interests is to the public detriment whether religious groups activities are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community was considered relevant by the high court in overriding the limited protection given by section 116 of the Constitution and the Irish Charities Act in 2009 has excluded certain gifts from being for the advancement of religion at all and you can see there on the slide this is section three subsection 10 excluding gifts two or for the benefit of an organisation or cult the principal object of which is the making of profit or that employs oppressive psychological manipulation these various tests assist our understanding of what may be encompassed by public detriment although I think there are obvious dangers here regarding discrimination against minority religious groups and neutrality becomes really important here so to conclude we've been pleased to know to conclude how the relationship of religion and secular state is managed is important to the security of the state and the well-being of all its citizens including those who hold religious beliefs national security laws and the criminal law provide blunt and potentially dangerous instruments for this task I would suggest that more effective and positive regulation of religious activity occurs within the context of religious financing law but the state's power to mould the activities of religious groups in this way must obviously be exercised with caution and consistently with human rights norms history shows that persecution by the state will strengthen a religious group and may encourage extremism and isolation by weeding out lukewarm members and strengthening the convictions of those remaining the Australian government's suppression of the Jehovah's Witnesses in 1941 by dissolving their incorporated association and confiscating their assets for example backfired the group is said to have doubled in numbers during the period of repression and as the Preston Temple case in England shows a religious group may choose not to change its practices and to forfeit the greater fiscal benefits on offer so a burning issue in Australia at present albeit concerning direct funding of religiously motivated activity the religious schools issue is why governments fund religious groups whose practices are repugnant to sections of Australian society so I I hope I've made it clear that the right to manifest religious beliefs is not unqualified and also that withdrawal of state funding may be justified on human rights grounds and may constitute an acceptable compromise between respect for freedom of religion in that a faith-based practice is not prohibited as such and the interests of the state now whether such a solution is politically