In Bottrill v Sunol (Discrimination) [2018] ACAT 21, dealing with the latest dispute over the Ordo Templi Orientis (OTO), the ACT Civil and Administrative Tribunal considers what is a 'religion' and thus potentially covered under vilification regimes. There had been earlier appearances in eg Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484 and Bottrill v Sunol & Anor (Discrimination) [2017] ACAT 81
The OTO had been characterised as a satanic cult that featured child sacrifice.
The Tribunal comments
Statute
In the dictionary of the Discrimination Act the following definition occurs
religious conviction includes—
(a) having a religious conviction, belief, opinion or affiliation; and
(b) engaging in religious activity; and
(c) the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and
(d) engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and
(e) not having a religious conviction, belief, opinion or affiliation; and
(f) not engaging in religious activity.
Cases
In Church of the New Faith v Commissioner of Pay-Roll Tax (Vict.) (1983) 154 CLR 120,(the Scientology case), the High Court found that Scientology was a religion and canvassed the varying criteria that might be sufficient to satisfy that description. There were three separate decisions and the tests were not exactly the same. Mason ACJ and Brennan J said at [17]:
...for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual’s or a group’s freedom to profess and exercise the religion of his, or their, choice. (emphasis added)
At [23] it was said not to be limited to theistic religions and the test of religious belief was satisfied by belief in supernatural ‘Things’ or ‘Principles’ and not to limited to belief in God or in a supernatural ‘Being’.
Wilson and Deane J gave similar but not identical tests and said at [18]:
One of the more important indicia of a religion is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a religion. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium (cf. Malnak v. Yogi [1979] USCA3 125; (1979) 592 F (2d) 197 is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.
They also said at [19]:
As has been said, no one of the above indicia is necessarily determinative of the question whether a particular collection of ideas and/or practices should be objectively characterized as a religion. They are no more than aids in determining that question and the assistance to be derived from them will vary according to the context in which the question arises. All of those indicia are, however, satisfied by most or all leading religions. It is unlikely that a collection of ideas and/or practices would properly be characterized as a religion if it lacked all or most of them or that, if all were plainly satisfied, what was claimed to be a religion could properly be denied that description. Ultimately however, that question will fall to be resolved as a matter of judgment on the basis of what the evidence establishes about the claimed religion. Putting to one side the case of the parody or sham, it is important that care be taken, in the exercise of that judgment, to ensure that the question is approached and determined as one of arid characterization not involving any element of assessment of the utility, the intellectual quality, or the essential Truth or worth of tenets of the claimed religion.
In Harrison and Commissioner for Social Housing in the ACT and Minister for Community Services and Minister for Aboriginal and Torres Strait Islander [2012] ACAT 10 at [50] it was said:
There is no definition of the phrase in the Discrimination Act 1991. The word conviction is used in this context in its ordinary meaning - to indicate a settled or strongly held belief.
In fact, there is a definition as set out above for religious conviction and it is much wider.
Conclusion about religious conviction
The test is wider than that explained in the Scientology case as it extends to non-belief. No doubt atheism was intended to be covered. Thus, the element of the supernatural is not essential. On the undisputed evidence in this case the OTO did satisfy the criteria described in the Scientology Case and the applicant had a conviction based on its teachings. If the crimes attributed to the applicant and OTO in the blog complained of were true, it would be likely that it would not be regarded as a religion as they would constitute: ...canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion
