Colanders

In Watkins v Commissioner for Corporate Affairs [2021] SACAT 10 the South Australian Civil & Administrative Tribunal has robustly endorsed the state Corporate Affairs Commission's rejection of an application to incorporate the Church of the Flying Spaghetti Monster Australia on the basis that 'it was not formed for a religious, educational, charitable or benevolent purpose' under the Associations Incorporation Act 1985 (SA). 

SACAT's determination states

The applicant argued that whether Pastafarianism was a religion or not was a matter of the belief of its adherents and not a matter for the Corporate Affairs Commission. The applicant rejected the Commission’s view that Pastafarianism is a parody of established religions and their texts. The applicant also submitted that the proposed incorporated association fulfilled the legislative criteria of both a “charitable” and “educational” association. The respondent submitted that Pastafarianism was a religious parody and its central text was a direct mockery of established religions. The respondent submitted that more than a belief system was required to demonstrate a religion. It was argued that the educational or charitable activities of the proposed association were incidental and did not constitute purposes for which the association was formed.

In affirming the original decision SACAT held

the Pastafarian texts do not represent religious texts and Pastafarianism does not fulfil the objective considerations required to establish a religious purpose under the legislation; there is no evidence of systematic teaching and learning processes, nor of any structured, consistent, and broad-based charitable activities undertaken by the association that fulfil the legislative criteria regarding an educational or charitable association. 

The determination notes 

the decision the subject of this review is the fourth decision made by the Commission to reject an application by Ms Watkins to incorporate the Church of the Flying Spaghetti Monster Australia pursuant to the Act. An initial application to incorporate the proposed incorporated association was made by Ms Watkins to the Corporate Affairs Commission on 11 November 2013, on the ground it was formed for a religious purpose, for the advancement of religion. This application was declined, further documentation was then provided, and on 21 August 2015 the Commission declined the application on the ground the proposed incorporated association was not an association formed for a religious purpose. The applicant appealed against this determination to the District Court of SA, but later withdrew the appeal. 

A further application to incorporate the proposed incorporated association was made on 12 February 2016, on the ground it had been formed for a religious, educational, charitable or benevolent purpose, to promote the religion of Pastafarianism and, in doing so, benefit the community through education, charitable donations, and the advancement of religious freedom and equality. This application was declined on 16 June 2016. The third application was made on 19 September 2017 and the application for incorporation was declined on 20 March 2019. It was this decision which was set aside by the Commission on 6 November 2019 following the referral for reconsideration by the Tribunal, and which was substituted by the decision of 6 November 2019 which is the subject of this review. ... 

Ms Watkins explained to the Tribunal that she was seeking incorporation for the Church of the Flying Spaghetti Monster Australia in order that the association would be recognised as a not for profit organisation under the Act, and be a legal entity in its own right. She told the Tribunal that s 18(1)(a) of the Act should be used to enable the incorporation of any body that does not come within any of the other categories of eligibility under s 18(1) of the Act and which does anything of a charitable nature, which she asserted was the case with the proposed incorporated association. 

However, in particular, Ms Watkins submitted that the proposed incorporated association does specifically fall within s 18(1)(a) of the Act, as it was formed for religious, educational, charitable or benevolent purposes. 

Ms Watkins submitted that the proposed incorporated association was established for purposes consistent with those set out in s 18(1)(a) of the Act. She referred to the proposed incorporated association’s Constitution of 15 August 2017. Clause 3 of that Constitution sets out the Objects or purposes of the association as follows: 

The objects of the association are 3.1 To promote Pastafarianism 3.2 To promote education in respect to Pastafarianism, including but not limited to educating the public as to the nature, beliefs and values of Pastafarianism 3.3 To formalise and organise the community of Pastafarians in Australia 3.4 To provide relief to diseased, disabled, sick, infirm, incurable, poor, destitute, helpless or unemployed persons, or the dependents of any such persons 3.5 To support and promote the ideals of freedom and equality generally; and 3.6 Any objects consistent with the above objects as the committee may determine from time to time 

Ms Watkins submitted the proposed incorporated association was established for religious purposes. She said she personally believed Pastafarianism was a religion, and she believed in the truth of its teachings. She referred to the High Court decision in the Scientology Case (Church of the New Faith v Commissioner for Payroll Tax, [1983] HCA 40; (1983) 154 CLR 120)), in which the Court provided a definition of religion as belief in a supernatural being, thing or principle; and acceptance and observance of canons of conduct in order to give effect to that belief. 

Ms Watkins submitted that the Commission had stated in its rejection of the application for incorporation that it was accepted that Pastafarians (members of the proposed incorporated association) had a belief in Pastafarianism, but nevertheless concluded that Pastafariansim was not itself a religion. She submitted that whether it was a religion was a matter for the belief of its members or adherents, not a matter for the Commission. 

Ms Watkins told the Tribunal that for some, Pastafarianism was a philosophy, for others it was a social movement. She said Pastafarianism does not require a belief in the Flying Spaghetti Monster, but rather a belief in the Universe as a whole, that everyone and everything was connected, and that doing good provided the basis of their behaviour. She said that Pastafarianism had as its basic belief that the force holding society together was manifested in the Flying Spaghetti Monster (that is, god is everywhere), but the Flying Spaghetti Monster itself is a blank canvas which can be depicted as anything you want it to be, as a metaphor for whatever might be, for individuals, the meaning of life. She said that behind this set of beliefs was a set of strong moral and ethical values. 

Ms Watkins rejected the Commission’s view that Pastafarianism was simply a parody of religion. She said that Pastafarianism has a god, supernatural being or principle; an ethical structure; tenets of behaviour recognised by members of the group; and a group of people who see themselves and each other as part of that group. She said bodies such as Buddhism, which do not have a “god”, are nevertheless recognised as religious bodies. Ms Watkins told the Tribunal that the Commission referred to aspects of the proposed incorporated association’s teachings which utilise humour as evidence that it was a parody of other religions: however, she said these examples were not “mocking” comments about other religions or religion generally, but were included in Pastafarian texts and teachings in order to demonstrate that criticism of other religious practices are misguided, and to encourage Pastafarians to learn more about religion in general as well as other religions. She told the Tribunal that the Pastafarian Random Number of Not Commandments, Suggestions, was not a parody of the Ten Commandments, but rather set out principles for the Pastafarian life, but with humour. She rejected suggestions that other aspects of the Gospel of the Flying Spaghetti Monster mocked or parodied religious texts, and submitted that references therein to the Jewish sacred text as The Old Testicle, and the Christian bible as The New Testicle, and the Muslim Quran as the Q-tip or whatever, and the Hindu Vedas as Ten Little Indians, were examples of humour and invitations to readers to inform themselves further, not mocking or parodic references to other religions and their texts. 

Ms Watkins submitted that the proposed incorporated association also fulfilled other criteria within s 18(1)(a) of the Act, establishing the criteria for incorporation. She conceded that some of the activities of the proposed incorporated association were not yet addressing these objects, but she referred the Tribunal in particular to the Australian Humanist Convention in April 2018 involving the proposed incorporated association in conjunction with its commitment to education concerning human rights as set out in Object 3.5 in the Constitution. This Convention had addressed Kaurna land issues, domestic violence, homelessness, religious freedom, sexual harassment, and broader issues of equality in society. She said the proposed incorporated association “did lots of organising of the Convention”, including arranging the Convention, the venue, and the entertainment. She said the proposed incorporated association participated in this Convention with other associations, and this was a demonstration of its charitable and educational purpose. She said there had been no charge to attend the Convention, and about 60 people attended. 

Ms Watkins said the proposed incorporated association also established “Feed the Hungry” events at Flinders University, open for anyone who needed a meal. She said these events were open to everyone, not just members of the association. Ms Watkins told the Tribunal that the association in South Australia does not have any members at the moment, preferring to have the proposed incorporated association incorporated first and then admitting members. 

Ms Watkins submitted that Pastafarianism, the name attached to the practices or set of beliefs of the members of the proposed incorporated association, places much emphasis on helping and assisting others, focussing on ending poverty and showing tolerance and compassion to others. She said these “humanitarian” or philosophical purposes should be included within the meaning of the activities referred to in s 18(1)(a) of the Act. In any event she submitted these purposes of the proposed incorporated association were clearly within the meaning of “charitable” in s 18(1)(a) of the Act. She said charitable purposes constituted a significant purpose of the proposed incorporated association, and it was intended that when it had the money it would engage in more charitable activities in pursuit of these objects, including building a homeless shelter. She said it was expected that when it did obtain incorporated status it would be able to attract donations as a not for profit organisation and so pursue these objects. ... 

The Respondent’s submissions 

The Commission was represented by Mr Ambrose. He submitted to the Tribunal that the decision of the Commission was both the correct and preferable decision in this matter and so should be affirmed. 

Mr Ambrose told the Tribunal the decision turned on whether the proposed incorporated association had been established for a religious, educational, charitable or benevolent purpose within s 18(1)(a) of the Act. He said Ms Watkins had not suggested that the purposes of the proposed incorporated association came within any of the other criteria set out in s 18 of the Act. 

Mr Ambrose submitted that Pastafarianism was not a religion, but rather was a parody or a critique of religion generally. He said the Commission did not in its decision make any finding concerning matters of belief, but rather indicated that although “members ... may share a common interest ... and a belief in Pastafarianism”, the Commissioner was “not satisfied that Pastafarianism is a religion”, specifically referring to the principles stated by the High Court in the Scientology Case (1983). 

Mr Ambrose submitted to the Tribunal that the central text of Pastafarianism, The Gospel of the Flying Spaghetti Monster, was an attack on established religions by way of parody. He submitted that the suggestion by Ms Watkins that the purpose of the mockery of established religions and their texts is to encourage others to read and learn about those religions is not supported by any other evidence, documentary or otherwise, provided by her in support of her application. 

As an example of this parody Mr Ambrose in particular referred the Tribunal to The Random Number of Not Commandments, Suggestions, contained in The Loose Canon, a holy book of the Church of the Flying Spaghetti Monster, and part of The Old Pastament. Mr Ambrose submitted this material represented a parody of the 10 Commandments of the Christian Bible Old Testament, mimicking that text in terms of the form of language and content, and mocking the content, presenting it as ridiculous and trivial. He submitted that this, and other examples referred to in his written submission, demonstrated that Pastafarianism was a hoax, sham or parody, and not a religion for the purposes of the Act. 

Mr Ambrose referred the Tribunal to the decision of Stephen Cavanaugh v Randy Bartelt, et al., District Court of Nebraska, 4:14-CV-3183, document #47, 12 April 2016, 1 (Gerrad J), in which the District Court of Nebraska found that Pastafarianism is not a religion, but a parody, intended to advance an argument about science and the place of religion in public education. In particular, Gerrard J concluded that The Gospel of the Flying Spaghetti Monster is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction ... Of course, there are those who contend ... that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not “religious” simply because a plaintiff labels it as such. 

Mr Ambrose suggested this approach was highly persuasive in this matter. 

Mr Ambrose referred to numerous other examples in the “Pastafarian texts” which he submitted illustrated the parodic and mocking purpose and nature of the material, and which he submitted could not be reasonably interpreted as intending to form the basis of a belief system or practice to support such. He submitted the writings were a parody of all religions and the nature of god, and were often presented in offensively racist and sexist terms. The principles to assist in the definition of religion provided by the High Court in the Scientology Case include reference to a collection of views and beliefs with reference to which people can live, and he suggested that the material contained in the Pastafarian writings did not constitute such material. 

Mr Ambrose submitted that more than a belief system was required to demonstrate a religion. He referred to the multiple indicia identified by the High Court in the Scientology Case. Mason ACJ and Brennan, Wilson and Deane JJ, referred to a belief in a supernatural being, thing or principle, and an acceptance of canons of conduct in order to give effect to that belief. Wilson and Deane JJ also added further criteria, including that the ideas must relate to man’s nature and place in the universe and relation to things supernatural; that adherents constitute an identifiable group or groups, however loose; and that the adherents themselves see the collection of ideas and/or practices as constituting a religion. 

Mr Ambrose told the Tribunal that no explanation had been provided by Ms Watkins as to how the proposed incorporated association was a religion, other than asserting that the writings referred to did constitute a belief system which was not a charade. He submitted mere assertion is not enough, and that Ms Watkins’ argument amounted to no more than an assertion that the ideas presented by Pastafarianism are no more or less ridiculous than those of any other religion which has incorporated status under s 18 of the Act, and therefore the proposed incorporated association should also be incorporated. 

Mr Ambrose referred the Tribunal to the 25 statutory declarations provided by Ms Watkins in support of her application. These statutory declarations are all identical, and each deponent asserts their belief in the Flying Spaghetti Monster “as my deity”, and that they “follow the Pastafarian canons of conduct”. Mr Ambrose indicated none of these deponents provide any explanation of why these beliefs and practices constitute a religion, or how ritual is motivated by religion, or how the canons of conduct are connected to belief. He submitted these assertions, also repeated by Ms Watkins before the Tribunal, are assertions only, and not genuine statements of organised religious belief. Mr Ambrose also referred the Tribunal to other criteria in s 18(1)(a) of the Act in addition to the reference to religion, in particular to education and charitable purposes. He submitted that to the extent to which the proposed incorporated association engaged in education or charitable activities this was entirely incidental or ancillary activity, and those activities did not constitute purposes for which the association was formed. 

Mr Ambrose referred the Tribunal to the proposed incorporated association’s Constitution and referred to the several versions which had been provided. 

The 2014 Constitution indicated that the purposes of the association were entirely connected to the promotion of the Pastafarian philosophy or way of life. The Constitution was subsequently revised, but the version of 18 January 2016 was similar, but with no reference to education. Another revised Constitution of 15 August 2017 adds in a reference to charitable purposes, but this version of the Constitution is not signed. The version of the Constitution provided by the applicant in July 2017 in response to a letter from the Commission refers to the promotion of education in relation to Pastafarianism. 

Mr Ambrose submitted that despite “random references” to education, it was apparent from the objects set out in these versions of the Constitution that the primary purpose of the association is the promotion of the Pastafarian way of life and philosophy. There was no reference to education other than as education relating to Pastafarianism, and he submitted this does not constitute “education” for the purposes of the Act. Mr Ambrose submitted that “education” requires a systematic process of instruction, training and practice, imparting knowledge and guiding the development of the mind through training or teaching. He submitted that none of these features existed either through the practice of Pastafarianism or in what was suggested or envisaged in the Constitution, and did not come within the meaning of education in s 18(1)(a) of the Act. 

Mr Ambrose told the Tribunal Ms Watkins had not referred to any engagement in education at large or in any ongoing manner, but rather involvement in a single event, arranged by another organisation, covering a broad and general range of topics of general interest. He submitted there was no evidence of interest or engagement in any systematic process of learning, and the provision of information concerning Pastafarianism on the association’s website did not constitute education, but rather merely the provision of information. 

With respect to charitable purposes, Mr Ambrose submitted that this could not be regarded as a dominating or even significant purpose of the proposed incorporated association. He indicated in the various Constitutions provided for the association, some referred to charitable purposes, some did not. 

He submitted that the references to the Feed the Hungry events could not establish that these were examples of the proposed incorporated association’s charitable purpose. There was no evidence these were broadly based charitable events or that they were attended by anyone other than members or associates of the association. He also referred to assertions in the provided materials that the proposed incorporated association provided financial support as loans to needy people through its Kiva website. However, the material provided indicated that this support did not amount to interest free loans, and they could not be regarded as benevolent because the loans were required to be repaid. There was evidence of only 8 loans provided since 2016. 

Mr Ambrose also referred to the legal treatment of Pastafarianism elsewhere. Ms Watkins in her written material to the Commission asserted that Pastafarianism is recognised “all around the world”. One example was in New Zealand, where the New Zealand affiliate of the proposed incorporated association was approved as an organisation to provide celebrants to officiate at marriages. 

Mr Ambrose provided an affirmed affidavit of Jeffrey Ronald Montgomery, Registrar-General of Births Deaths and Marriages in New Zealand. Mr Montgomery states that in 2015 the New Zealand affiliate of the proposed incorporated association applied for approval as an organisation for the purpose of nominating persons to solemnise marriages. Mr Montgomery approved this application in November 2015, but issued reasons explicitly stating that the granting of such approval “does not grant any particular status to the Church, other than being able to later nominate celebrants for my consideration”, and he also states, “[N]o judgement is made on the validity of these beliefs or convictions”. Mr Ambrose told the Tribunal this case does not support Ms Watkins’ assertion that Pastafarianism is recognised in New Zealand. He also told the Tribunal that although Ms Watkins referred to some other jurisdictions where some Pastafarian practices have apparently been accepted for some purposes, she had made no reference to other international jurisdictions where Pastafarianism has not been accepted or endorsed. 

Mr Ambrose concluded that the material does not demonstrate that the proposed incorporated association was formed for religious purposes. He told the Tribunal Pastafarianism was not a religion because there was no adherence to any genuine belief, and no statement or structure in the “Gospel” or “Canon” referring to any “supernatural being thing or principle” by which people can lead their lives. He referred the Tribunal in particular to the discussion of the principles by which a religion may be identified as set out by the High Court in the Scientology Case.

SACAT concludes 

In reviewing the decision made by the Commission to reject Ms Watkins’ application for incorporation of the proposed incorporated association, the Tribunal must examine the Commission’s decision by way of a rehearing, and consider what is the correct or preferable decision, giving appropriate weight to the decision of the original decision maker, namely the Commission, (see s 34(3) and (4) of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act)). 

As this constitutes a rehearing, the Tribunal is able to take into account both the material before the original decision maker and any additional evidence presented. The additional material before the Tribunal includes Ms Watkins’ own assertions before the Tribunal, the evidence of Mr Sharrad, the 25 affidavits of Pastafarian members, and the affidavit of Mr Montgomery. I take this, and all the documentary material provided, into account. 

The decision of the Commission in this matter was to reject Ms Watkins’ application for the proposed incorporated association as it did not satisfy the eligibility criteria set out in s 18(1)(a) of the Act, in particular, that it was not “formed” for a religious, educational, charitable or benevolent purpose. 

The central issue for the Tribunal in considering if the decision of the Commission was correct is whether the proposed incorporated association was formed for one or more of these specified purposes. Ms Watkins’ primary argument is that Pastafarianism constitutes a religion, and the association was thus formed for religious purposes. As a supporting or ancillary argument she also submitted that the association was formed for educational and charitable purposes. If the Tribunal is satisfied that the association was formed for religious purposes, then s 20(1) of the Act requires that the Commission must register the rules of the association and issue a certificate of incorporation for the association, subject only to the other criteria set out in s 20(1). 

The most recent Constitution of the association, dated 15 August 2017 sets out the objects of the association in clause 3:

3.1 To promote Pastafariansim 

3.2 To promote education in respect to Pastafarianism, including but not limited to educating the public as to the nature, beliefs and values of Pastafarianism 

3.3 To formalise and organise the community of Pastafarians in Australia 

3.4 To provide relief to diseased, disabled, sick, infirm, incurable, poor, destitute, helpless or unemployed persons, or the dependents of any such persons 

3.5 To support and promote the ideals of freedom and equality generally; and 

3.6 Any objects consistent with the above objects as the committee may determine from time to time

The focus of these objects is the promotion of Pastafarianism. Pastafarianism is the organisation which was submitted to constitute a religion. On this basis the submission is that the association was formed for a religious purpose, namely, to promote, promulgate and organise a religion, namely Pastafarianism, and to conduct its activities. 

With her application to the Commission Ms Watkins provided material setting out the beliefs of the association, contained in various texts relating to Pastafarianism, in particular in The Gospel of the Flying Spaghetti Monster by Bobby Henderson, dated 2006, and The Loose Canon, subtitled “a holy book of the church of the flying spaghetti monster”, and containing sections entitled Proclamations of the Councils of Olive Garden, The Old Pastament, The New Pastament, The Official Pastafarian Prayer Book, and Final Thoughts from Olive Garden Council-members. Ms Watkins also provided statutory declarations from 25 Pastafarian members, all asserting their belief in the Flying Spaghetti Monster as their “deity”, and their adherence to Pastafarian canons of conduct. 

In determining if Pastafarianism is a religion for the purposes of s 18(1)(a) of the Act, the Tribunal was directed to the discussion by the High Court of what constitutes a religion in the 1983 decision of Church of the New Faith v Commissioner for Payroll Tax [1983] HCA 40; (1983) 154 CLR 120 (the Scientology Case). 

The High Court identified multiple indicia for determining if a set of beliefs constituted a religion. Mason ACJ and Brennan, Wilson and Deane JJ, referred to a belief in a supernatural being, thing or principle, and an acceptance of canons of conduct in order to give effect to that belief. Wilson and Deane JJ added further criteria, including that the ideas must relate to humanity’s nature and place in the universe and its relation to things supernatural; that adherents constitute an identifiable group or groups, however loose; and that the adherents themselves must see the collection of ideas and practices as constituting a religion. 

Ms Watkins told the Tribunal that she “believed in” Pastafarianism, and the 25 deponents whose statutory declarations were before the Tribunal state that they “believe in” the Flying Spaghetti Monster as their “deity”, and live according to the tenets of Pastafarianism. Ms Watkins submitted this evidence of belief was sufficient to establish that what was believed in constituted a religion. 

Having reference to the indicia provided by the High Court in the Scientology Case, I do not accept this is the case. There must be a structure and organisation which consciously connects conduct and ritual to a belief in some overarching thing, idea or principle, as well giving effect to it. In addition however, there must be some motivation to the belief that is, in the commonly accepted sense, a religious motivation: this is proposed in the additional criteria of Wilson and Deane JJ in referring to those ideas and beliefs relating to the supernatural and to “man’s nature and place in the universe”, expressing this as follows:

One of the most 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.

Their Honours emphasise that no one of the above criteria is necessarily determinative of the question whether a particular collection of ideas and/or practices should objectively be characterised as “a religion”, but they also make it clear that they are concerned with genuine beliefs, structures and principles, “[p]utting to one side the case of the parody or sham”. 

The Commission’s view, and the submissions made by Mr Ambrose in support of the decision, was that regardless of any issue of belief, structure and organisation, Pastafarianism is a “parody or sham”, and its texts constitute and are presented as a satire on established religions, mocking and satirising them for another purpose, not for the purpose of articulating a relationship between humanity and the supernatural and in this context, humanity’s place in the universe, with tenets of belief and canons of behaviour and conduct to reflect and effect those relationships. Mr Ambrose’s submissions focussed on the disrespectful and often offensive way in which the Pastafarian texts reference other religions as demonstrating their parodic and so not genuinely religious, nature. 

In Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 82 ALR 530, the Full Court of the Federal Court defined “sham” (in the context of corporations law), to mean "Something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive". 

The Encyclopaedic Australian Legal Dictionary defines “parody or satire” (in the context of copyright law) as an imitation of work made for comic effect. 

The Pastafarian texts referred to above are set out in a conventional or traditional “religious“ form, but they contain some surprising articulations. In particular there are numerous expressions which reference the texts of established religions, mimicking those texts in form and language, but in a clearly parodic form. These include such references such as The Random Number of Not Commandments, Suggestions, contained in The Loose Canon, a holy book of the Church of the Flying Spaghetti Monster, and part of The Old Pastament; references to the Jewish sacred text as The Old Testicle, the Christian bible as The New Testicle, the Muslim Quran as the Q-tip or whatever, and the Hindu Vedas as Ten Little Indians; and the use of expressions such as torahtellini, pastalms, and apastles. 

I do not accept the applicant’s explanation of the use of these expressions (and numerous other similar expressions, many expressed in racist and sexist terms, referencing texts or practices of other religions) as examples of humour, and for the purpose of generating curiosity so that readers may be encouraged to research and learn about these other religions. Ms Watkins suggested that the sexist and racist terms used constituted the humour. There is nothing in the Pastafarian texts which references other religions in a positive manner or directs attention to them other than in a mocking form. In so far as these expressions and references to other religions or religious texts or practices are made in what might be regarded by Pastafarians as in a humorous form, it is likely that for adherents of the other religions the references would be regarded, at best, as offensive and insulting, rather than amusing or curiosity-provoking. 

It is my view that the Pastafarian texts can only be read as parody or satire, namely, an imitation of work made for comic effect. In my view its purpose is to satirise or mock established religions, and it does so without discrimination. That it is a satire or mockery of religion is not making a negative assessment of the Pastafarian texts, but it is distinguishing between the texts being themselves “religious” texts, ostensibly carrying some perceived truth and tenets of belief about a supernatural being, thing or principle, and an articulation of canons of conduct arising out of that belief and giving effect to that belief; and the texts being a satire upon established religious texts, mocking and attacking them by appropriating their form and language. This is well illustrated with reference to what is clearly a parody of the 10 Commandments of the Old Testament in The Random Number of Not Commandments, Suggestions, mimicking the Bible text in terms of language and content, and mocking it as either mundane or ridiculous. I am satisfied the Pastafarian texts do not represent, are not, and are not intended to be, religious texts. I am not able to make an assessment as to whether Ms Watkins, who said she believed in Pastafarianism, or the deponents of the 25 statutory declarations provided to the Tribunal who all state they accept the Flying Spaghetti Monster as their deity, have a religious belief in Pastafarianism, but in my view it is not necessary for me to make any such assessment. However, I note there was no evidence concerning how ritual is motivated by religion, or how the canons of conduct are connected to belief. Belief is a subjective notion, and people are free to choose their own beliefs. However, subjective belief does not make the subject of the belief a religion for the purposes of the law in Australia, and an association formed to promote that belief will not make that association one formed for a religious purpose within the meaning of s 18(1)(a) of the Act. 

However, although belief is a subjective notion, there are some objective considerations to be taken into account in determining if something is a religion within the meaning of Australian law. The general principles are clear. The Pastafarian texts present a “supernatural being, thing or principle” (the Flying Spaghetti Monster); canons of conduct demonstrating that belief (for example, The Random Number of Not Commandments, Suggestions); and some rituals which are related to or derived from some aspects of the texts (for example, wearing colanders). Do these considerations establish that Pastafarianism is a religion? Wilson and Deane JJ in the Scientology Case suggest more than these objective considerations is necessary. They suggest there must also be a religious motivation among the adherents, and an understanding that beliefs or ideas relate to and help define humanity’s nature and place in the universe and to things supernatural. I am not satisfied any evidence of such motivation and understanding has been provided in relation to Pastafarianism. 

However, underlying all these considerations is the distinction between a religion, and a hoax, sham or parody of religion. 

Pastafarianism in its texts and practices seeks to present itself as a religion. Its adherents say they “believe” in it as a religion. Nevertheless I am satisfied that its texts are not religious texts nor intended as such: I am satisfied that they are parodic texts, developed and expressed for the purpose of mocking and satirising established religions, holding them up to ridicule and suggesting they are worthless and meaningless. The texts set up the satire by appropriating the form and language of established religious texts and taking the precepts and teachings of those religions and presenting them as merely mundane, pragmatic, or ridiculous. The Pastafarian texts do not have any intrinsic value in terms of articulating a relationship between humanity and the supernatural and humanity’s place in the universe, presenting tenets of belief and canons of behaviour and conduct to reflect and effect that relationship and relationships with others. At best the texts present ordinary moral admonitions and mundane articulations of principles of conduct present in the texts of most other established religions.

DTC Genomics

'Science Communication Meets Consumer Relations: An Analysis of Twitter Use by 23andMe' by Nicole M. Lee, Alan Abitbol and Matthew S. VanDyke in (2020) 42(2) Science Communication comments 

For-profit organizations play a considerable role in the dissemination of scientific research and information. In the case of direct-to-consumer genetic testing, this is important because how consumers learn about genetic science can influence health decisions and support for science. Through a content analysis of Twitter posts (N = 1,000), this study examined how 23andMe balances traditional promotion, communicating product benefits, and sharing scientific research. Results indicated that about half of all posts share science news but sharing science has declined over time. Far fewer posts communicate about the products or their benefits, but these posts garner more retweets and replies. 

Science communication has grown as both a professional practice and area of scholarly study in recent decades (Akin & Scheufele, 2017). When it comes to the sharing of scientific discoveries and news, research has examined the communication of organizations such as universities (e.g., Trench, 2017) and government agencies (e.g., Lee & VanDyke, 2015). However, science is also an integral part of many for-profit companies; and depending on the type of products or services they provide, science communication may become part of their corporate communication efforts. This may include communicating technical information about the product itself, but may also extend beyond that to include sharing industry news and scientific discoveries more broadly. 

Direct-to-consumer (DTC) genetic testing companies offer an interesting example of corporate activity, where explaining the science itself to consumers might be seen as important from a marketing or consumer relations perspective. This deserves more study because consumer knowledge of genetic science likely aids in interpretation of test results and may also influence how consumers perceive related scientific topics. In the case study presented here, we examine the Twitter activity of 23andMe, which is one of the largest DTC genetic testing companies, was the first to receive FDA approval, and until recently was also the only major genetic testing company to offer both health and ancestral information (Hayden, 2017). 

Part of why understanding the communication habits of genetic testing companies is important is the immense popularity of the tests. In fact, as of July 2019, 15% of U.S. adults had taken at least one DTC genetic test (Graf, 2019). Despite the popularity, 23andMe and other companies face many challenges related to assuaging concerns about data security and privacy and communicating with consumers about the science behind their product and what it can tell them (AP-NORC, 2018). Like other consumer-facing companies, one way DTC genetic-testing companies connect with consumers is by communicating the benefits of their products (Singleton et al., 2012). For instance, they may communicate about the health information consumers can learn from individual tests (Covolo et al., 2012) or share heartwarming stories about relatives meeting for the first time. By communicating benefits, companies strive to match the personal values of the consumer as consumers make purchasing decisions based on the “benefits they get from buying, using or consuming the product” (Hooley & Saunders, 1993, p. 17). 

One medium that companies, including 23andMe, use to connect with consumers and communicate product benefits is Twitter. Twitter can provide consumers an opportunity to directly engage with a company. Consumers can reply to tweets made by a company, share a company’s tweets with their followers, and can private message a company with concerns or questions. These engagement practices can help consumers feel a personal connection with the company, which can ultimately lead to increased support and generate revenue (Baird & Parasnis, 2011). Relevant to the current study, Twitter is also a preferred platform among the science community (Collins et al., 2016).

The authors conclude 

Communicating about complex topics has always been a challenge for organizations. Consumers may get overwhelmed by the information communicated, and organizations struggle with articulating messages in a succinct and simple way. In the world of science, this especially has been a concern. Extant research has explored how science organizations communicate to their main constituents (e.g., Jarreau et al., 2019; Lee & VanDyke, 2015), but we have seen less focus on the science communication practices of for-profit companies, especially beyond communicating specifics of a product. Companies communicate about various topics related to health and the environment that can have substantial implications at the individual and society levels. The DTC genetic testing industry offers an opportunity for researchers to investigate the efforts of for-profit companies to communicate about science to a lay consumer audience. Our study strongly suggests that 23andMe communicates about genetic science beyond explaining its own products but that these efforts have declined over time. This study provides a basis for further research on DTC genetic-testing companies, their science communication, and the effects of that communication.

'Direct-to-Consumer Genetic Testing and Its Marketing: Emergent Ethical and Public Policy Implications' by Alexander Nill and Gene Laczniak in (2020) Journal of Business Ethics comments 

This paper provides a marketing ethics analysis that addresses the practice of selling genetic tests (GT) directly to the consumer (DTC). It details the complexity of this emergent sector by articulating the panoply of evolving ethical/social questions raised by this development. It advances the conversation about DTC genetic testing by reviewing the business and healthcare literature concerning this topic and by laying out the inherent ethical complications for consumers, marketers, and regulators. It also points to several possible public and company policy adjustments. Because this area is relatively new and incredibly dynamic, its current discussion is necessarily an exercise in the “logic of discovery” rather than the “protocol of validation”. The paper serves as a primer for the types of GT being promoted. It also calls for a public discourse in the academic and general community to uncover and define the ethical guidelines and systemic adjustments necessary to create fairness in the various DTC transactions occurring between genetic test sellers and the buyers/clients of their services. 

As described in our Abstract, this paper is mainly about the ethics of marketing Direct-to-Consumer (DTC) genetic tests (GTs). It is descriptive of the genetic test environment, and identifies the main risks and public policy issues raised by DTC GT. Further, it provides a three-step ethical analysis that allows formulating some preliminary recommendations for managers and public policy decision makers. Importantly, the manuscript tries to spark a public discourse among DTC GT companies’ main stakeholders; it also tries to instigate a societal dialogue desperately needed to tackle some of the thorniest ethical challenges raised by this new business practice. 

Despite the enormous complexities in accurately inferring practical and/or clinically useful information from a person’s genetic code, the accessibility and marketing of genetic tests (GTs) has been exponentially on the rise (Liu and Pearson 2008; Taylor et al. 2006; Phillips et al. 2018; Delbanco 2018). The global DTC genetic testing market is forecast to grow steadily and to be worth over US$1billion by 2020 (Global Market Insights 2019; Friend et al. 2018) and more than $4 billion by 2025 (PR Newswire 2017). One of the main key drivers of this phenomenal growth has been the dramatic cost/price reduction of testing (Eissenberg 2017; Webborn et al. 2015; Regaldo 2018). While it cost $2.7billion to sequence the first whole human genome, completed in 2001, the price-tag now is less than $2000 and continues to fall (Phillips 2016). 

Worldwide, at least 250 companies offer customers DNA tests via mail and/or internet promising everything from locating their ancestors, living healthier lives, finding the right diet, lowering their chances of developing cancer, and discovering their true talents (Friend et al. 2018; Krimsky and Johnston 2017). A typical DTC GT business transaction spans across different jurisdictions, where data collection, data storage, and data analysis are often located in different countries. In most cases, the consumer orders the tests online, the private testing company ships a sample collection kit (e.g., buccal, swab, or blood), and the consumer sends back the sample. The company performs the analysis and provides a test report, sometimes including the raw data, via Internet or mail (Krimsky and Johnston 2017). However, most of the claims made by DTC GT companies go unquestioned by outside reviewers (Nelson and Robinson 2014), unregulated by governmental institutions, and unchecked by ethical considerations. Therefore, a meaningful societal dialogue about the use and abuse of DTC GT is still in its infancy, even as it is desperately needed. 

In order to contribute to this dialogue, the primary objectives of this paper are to (1) provide an overview of state-of-the-art DTC GT by integrating a slice of the business and health/medical literature on the topic, (2) describe the type of tests offered and their potential impact for consumers and society, (3) briefly analyze these issues from an ethical perspective with the overarching goal to stimulate societal dialogue about the benefits and perils of DTC GT, and (4) offer consumer-centric, ethics focused, suggestions to companies and regulators.

 'You can’t put the genie back in the bottle: on the legal and conceptual understanding of genetic privacy in the era of personal data protection in europe' by Santa Slokenberga in (2021) S1 BioLaw Journal 223-250 comments 

This article sheds a light on how the data protection requirements enshrined in the General Data Protection Regulation (GDPR) relate to shaping genetic privacy in the context of a complex and integrated genetic testing enterprise. It suggests that the informational dimension of genetic privacy in the era of data protection could be described as a sphere of controlled access. Given that the GDPR does not prescribe quantitative or contextual limitations relating to access once the applicable requirements are met, one could argue that there are good preconditions for the field to head in the direction of genetic transparency. This puts on the agenda the questions of what challenges this could bring and whether adequate mechanisms exist to deal with them.

'A tidal wave of inevitable data? Assetization in the consumer genomics testing industry' by Susi Geiger and Nicole Gross in (2021) Business & Society comments 

We bring together recent discussions on data capitalism and bio-capitalization by studying value flows in consumer genomics firms – an industry at the intersection between healthcare and technology realms. Consumer genomics companies market genomic testing services to consumers as a source of fun, altruism, belonging and knowledge. But by maintaining a multisided or platform business model, these firms also engage in digital capitalism, creating financial profit from data brokerage. This is a precarious balance to strike: If these companies’ business models consist of assetizing the pool of genomic data that they assemble, then part of their work has to revolve around obscuring to consumers any uncertainties that would potentially impinge on these processes of assembly. We reflect on the nature of these practices and the market relationships that enable them, and we relate this reflection to debates around alternative market arrangements that would potentially mitigate the extractive tendencies of these and other digital health firms. 

In July 2018, a number of consumer genomics companies - including the industry’s leaders Ancestry.com and 23andMe –signed up to a new data privacy protocol, which had been developed in conjunction with the data activist organization Future of Privacy Forum (FPF) (Romm & Hartwell, 2018). These best practices include provisions for express and fully consented sharing of genomic data with third party organizations (Future of Privacy Forum, 2018). While focusing attention on the firms’ privacy practices, the guidelines remain surprisingly silent of the fact that the commercial “sharing” or sale of genomic data is an intrinsic part of these firms’ business models. Questions of data privacy in consumer genomics are inseparable from questions of data ownership and the profits arising thereof; yet the former has received vastly more research and public attention than the latter. 

In this article, we broaden recent discussions on data or platform capitalism as practiced by data-driven technology firms such as Google or Facebook (Langley & Leyshon, 2017; West, 2017) by considering healthcare as a realm that is becoming increasingly entangled with data capitalist business models. As Atkinson, Glasner and Lock (2009, p. 5) point out, the bio- economy “generates a different form of value to that found in the wider economy”, namely value that always entangles economic with social and public concerns. But where and to whom does this economic value accumulate if it goes digital? What are the market arrangements and business models that enable economic value to flow in these so-called digital health industries, and are there any alternatives to the current models? 

By locating our inquiry in the consumer genomics industry, we study an industry that has been embroiled in controversies from its earliest days – in Cole and Banerjee’s (2013, p. 555) words, it is “morally contentious”. Social science commentators have raised questions around the mantle of democratization of health insights and clinical research that the consumer genomics industry likes to cover itself with (Prainsack, 2014; Regalado, 2017; Tutton & Prainsack, 2011). The industry has also encountered enduring skepticism from clinicians around the provision of worrying and even misleading information to consumers without the benefit of professional medical support (Rockwell, 2017). Despite these criticisms, judging by the industry’s growth rates (Deloitte 2015), consumer genomics companies seem to have been successful at portraying genomic information as a font of empowerment, belonging and knowledge to consumers (Turrini & Prainsack, 2016). 

While alert to these ethical debates, in this article we focus on the processes through which consumer genomic information is turned into assets, which allows these firms to operate on several markets at the same time – consumer, data licensing, venture capital and intellectual property markets. Following Birch (2017, p. 463), we define assets as “resources that generate recurring earnings”. We contend that for consumer genomics firms’ business models to work, there is a precarious balance to strike: If these companies aim to assetize the pool of genomic information that they assemble, then part of their work has to revolve around assuring an uninterrupted flow of data that can be turned into assets. We claim that this is done through three interlinked processes: of first accumulating consumer data; secondly, maintaining and augmenting it; and thirdly obscuring to consumers any uncertainties that would potentially impinge on first two processes. In tracing the value flows in this industry, we thus examine the practices that these companies engage in with regard to assetizing genomic information. More broadly, we argue that the move to assetization presents a major conceptual shift for firms that operate broadly in the healthcare realm. Conceptually, we combine theories of biocapital and data capitalism to analytically grasp and critique these processes of assetization. 

While our argument is conceptually driven, we draw on several empirical sources to inform our analysis: We examine genomic firms’ business models and market relationships through an analysis of their marketing collateral and websites, and we support this analysis through documents published either by the firms themselves or by technology journalists and analysts. We complement these documentary sources through eight interviews with industry insiders. Our investigation remains on the producer side – we study how consumer genomics firms “act in markets to affect what is valued and how it is valued” (Aspers & Beckert, 2011, p. 23), not how this value is perceived and realized by the consumer. Though we focus predominantly on economic value flows, we fully acknowledge that there are various values at play – ethical, social, and individual. Yet, as Rose and Novas (2005) point out, in markets these are often conflated with or even turned into “marketable assets” themselves. Comparing our findings with extant research, we discuss the “inevitability” of the private accumulation of economic value from consumer genomic data, to which our title refers, and we point to debates around alternative market arrangements in consumer genomics and the broader bio-economy. With this reflection we contribute to discussions on valuation and assetization practices at the intersection of individual, healthcare and commercial realms (Dussauge et al., 2015; Poitras & Meredith, 2009). We also add to an emerging literature scrutinizing the intersection of digital technology and healthcare practices in so-called digital health industries (Geiger & Gross, 2017; Fiore-Gartland & Neff, 2016; Saukko, 2018). Most fundamentally, our argument speaks to Birch’s (2017) question of what gets valued and how this is done in the bio-economy. 

Our article proceeds as follows. The next section introduces three strands of literature around “capitalisms” - bio-, data- and platform - bringing insights from the practices researchers have identified in data and platform capitalist firms into debates around biocapitalization. After briefly presenting our analytical approach, we use these conceptual foundations to first analyze the four value flows we have identified as constituent parts of a typical consumer genomic business model. We then explore 15 direct-to-consumer genomic testing firms’ marketing strategies to establish how these firms endeavor to create and maintain the “tidal flow” of data that underlies these value flows. Our Discussion summarizes our analysis before moving to build a research agenda for future research, centering on debates around conceiving alternative market mechanisms in the consumer genomics and related digital health industries.

'‘Your DNA Is One Click Away’: The GDPR and Direct-to-Consumer Genetic Testing' by Miriam C. Buiten in Klaus Mathis and Avishalom Tor (eds) Consumer Law and Economics (Springer, 2020) 205-223 comments 

In the last decade, a wide variety of direct-to-consumer (DTC) genetic tests has become available that allow consumers to learn about their ancestry, genetic traits and propensity to genetic diseases. DTC genetic testing companies encourage consumers to share their data for research purposes. The reason is that these companies operate on two-sided business models, generating revenue primarily through selling genetic data to pharmaceuticals and research institutions. This chapter considers possible reasons for concern about consumers sharing their genetic data. It discusses various market failures that may arise in this two-sided market, ranging from information asymmetries to externalities and market power. This chapter asks whether the General Data Protection Regulation (GDPR) is able to mitigate these market failures, or whether specific laws for genetic data processing are in order. This chapter concludes that the broad research exemption in the GDPR leaves a regulatory vacuum for DTC genetic testing companies and biobanks alike.