Another 'what's a religion?' judgment. In Bell v Queensland [2022] QSC 80 Burns J has addressed a claim by the 'Noosa Temple of Satan'.
The judgment states
[1] By s 76(1) of the Education (General Provisions) Act 2006 (Qld) (Education Act), a minister or an approved accredited representative of a “religious denomination or society” has an entitlement to give religious instruction in State schools to students who are members of that denomination or society.
[2] The applicant, Trevor Bell, and another man, Robin Bristow, are members of an unincorporated association known (by them at least) as the “Noosa Temple of Satan” (Temple). In March 2021, they made application for approval to deliver “Satanic” religious instruction at four nominated State schools. Their application was refused on the ground that the Temple “has no entitlement to provide religious instruction” because it “is not a religious denomination or society for the purposes of” s 76(1) of the Education Act.
[3] By this amended application, Mr Bell (who is legally qualified) seeks a statutory order of review in relation to that “decision” under Part 3 of the Judicial Review Act 1991 (Qld) (JR Act) and, further, orders setting the “decision” aside along with a declaration to the effect that the Temple is a religious denomination or society for the purposes of s 76 of the Education Act.
[4] For the reasons that follow, Mr Bell’s application must be dismissed.
The application for approval
[5] It is useful to commence with some largely uncontroversial facts concerning the application for approval.
[6] In that regard, I was informed by the parties that, for a religious denomination or society to avail itself of the entitlement conferred by s 76(1) of the Education Act, the Department of Education has published a “Religious Instruction Policy Statement” and what is described as a “Form 1” on its website. By completing the Form 1 and providing it to a school principal, the religious denomination or society notifies the principal of its intention to provide religious instruction in the school and applies for approval of a person or persons as accredited representatives. Of course, the power to approve a person as a representative is by s 76(1) vested in the Minister. However, I was asked to assume that the power to approve a person as a representative was delegated by the Minister for Education to school principals. There is no evidence to that effect, but I proceed on the faith of that assumption.
[7] On 1 February 2021, a completed Form 1 was provided to the principals of four State schools. Each was signed by “Robin Bristow (aka Brother Samael Demo-Gorgon), Spiritual Leader and Founder of The Noosa Temple of Satan”. In an attachment to those Forms, Mr Bristow and Mr Bell were nominated as the “accredited representatives” for whom approval was sought. Mr Bell was nominated as the “religious instruction coordinator”. By the Forms, it was proposed that the title of the proposed program be “Satanic Religious Instruction” and that its “aims and goals” were to “provide students with information about the religion of Satanism, including belief in Satan as a supernatural being, the canons of conduct and the tenets” and to “help students analyse the information and critically evaluate the religion of Satanism”.
[8] The Forms eventually found their way to a senior officer of the Department of Education. For reasons I explain below (at [14] to [17]), I agree with the submission made on behalf of the respondent that it was not for the recipient school principals to determine whether the Temple was a religious denomination or society and entirely appropriate that the respondent’s position on that question be formulated by a suitably qualified officer within the Department.
[9] On 5 March 2021, the Deputy Director-General of the Department of Education forwarded a letter to Mr Bristow in which, relevantly, the following was stated:
“It is the Department of Education’s position that the Temple is not a religious denomination or society for the purposes of section 76 of the Act.
From statements publicly attributed to you, the department understands that the Temple was established in response to the Australian Government’s proposal for a religious discrimination Bill and that most of the people who follow Satanism, do not believe that Satan exists.
Accordingly, the department considers there is a real question whether the Temple’s true purpose is political as opposed to religious. There is also limited evidence to demonstrate that the Temple has sufficient membership in order to be regarded as a denomination or society.
Therefore, as the Temple is not a religious denomination or society for the purposes of section 76 of the Act, it has no entitlement to provide religious instruction in Queensland state schools. To the extent that your proposal is an application for approval under section 76 of the Act, it is not a valid application.”
[10] On 12 March 2021, Mr Bristow replied to the letter from the Deputy Director-General. The purpose of his letter was, he stated, “to provide you with more information and to request that you reconsider your position”. Mr Bristow then wrote:
“Yes, the Temple was created in response to the proposed Religious Discrimination Bill but we do not see how that is relevant to your decision. We are a religion that objects to Christian authoritarianism. The proposed Bill seeks to entrench and expand Christian power. Of course it motivated us to create a church to gather and empower Satanists to oppose the proposed new laws. No true Satanist could sit back and watch. As a church we have a religious purpose which is manifested by political activism. In any event, many traditionally recognised religions have their genesis as organisations which included strong political agendas in response to social movements.
The Department may be confused by laws regarding tax exempt status for religious groups. In order to gain and keep tax exempt status, religious organisations must steer clear of endorsing political parties. Our application to conduct religious instruction classes is not a case regarding the Temple’s tax exempt status therefore the political activity of the Temple is irrelevant.
We do not know the proportion of Satanists who believe in Satan and neither does the Department. The same could be said of all religions. There are no doubt millions of nominal “Christians” who do not believe that Christ was the son of God. The statement is mere supposition and is irrelevant considering it is a feature common to all religions.
Regarding membership numbers, there is no legal authority prescribing the minimum number of members required ... for a religious denomination or society but there are areas where we can get some guidance. The Australian Bureau of Statistics gathers data on religious affiliations in Australia. It recognises over 11 religious denominations which have less than 50 members in Australia. Also, under the Associations Incorporations Act 1981, it is possible to incorporate an association with just 7 members.
The Temple has over 8,500 followers and likers on its Facebook page. In person meetings have been discouraged due to Covid-19 concerns but our Black Mass ceremony in October 2020 was sold out. Three families have requested us to provide religious instruction to their children.
The Education (General Provisions) Act 2006 and the Regulations do not prescribe a minimum membership number of members that are required in order to qualify as a denomination or society. To the contrary, there is no minimum number of attendees that are required for a religious instruction class. The minimum therefore is one which would indicate a legislative intention that smaller denominations not be disqualified.
The reasons for rejecting our application are either erroneous or irrelevant. If we cannot resolve this matter with the Department we will make an application to the relevant court seeking a declaration that the Temple is a religious denomination or society and is therefore entitled to apply to conduct religious instruction lessons.
We ask that the Department reconsider its decision by Friday the 20th of March 2021 otherwise we will proceed with court action seeking a declaration.”
[11] The Deputy Director-General responded by email on 19 March 2021. He re-affirmed the Department’s position, that is to say, that the Temple was not a religious denomination or society for the purposes of s 76(1) of the Education Act and that it therefore had no entitlement to provide religious instruction in Queensland State schools. ...
Shades of the Pastafarians' difficulties with incorporation in South Australia.
The judgment continues -
[20] In support of his application, a series of affidavits was relied on by Mr Bell; three were affirmed by him and a fourth by Mr Bristow. Mr Bristow was also cross-examined at the hearing. That was revealing because critical portions of his affidavit were demonstrated to be entirely false, a topic to which I shall later return.
[21] As I earlier observed (at [7]), Mr Bristow holds himself out as the founder and “spiritual leader” of the Temple and, in that respect at least, his evidence was supported by Mr Bell. In his role as leader, Mr Bristow uses what he has described as his “drag name”, Brother Samael Demo-Gorgon. He settled on that name after consulting a website and looking for the most demonic name he could find. As recently as May 2021 he was unsure whether he was a Satanist but, when giving evidence, he said that he had “reconsidered” and was now prepared to describe himself as a “non-theistic Satanist”. He agreed that, for him, Satanism was a “very effective political tool”.
[22] In his affidavit, Mr Bristow deposed that the Temple was “devoted to the education, practice, celebration and promotion of the religion of Satanism”. The name, “Noosa Temple of Satan”, is registered as a business name. There is also a “trademarked logo” featuring a pentagram along with a Facebook page and website devoted to the Temple. According to Mr Bristow, the Temple’s communications often use “black or dark coloured colour schemes” and often finish with “Hail Satan”. He deposed that “during religious ceremonies and for some special occasions” he wears “a black cloak, holds a replica skull and, if practical, [uses] candles”. Mr Bristow further deposed that he is “responsible for guiding [the Temple’s] objectives, purposes and day to day activities”. To do so, he consults with members of his leadership team whom he nominated as Mr Bell and a graphic designer who manages the Temple’s social media activities. No other members of the Temple were identified.
[23] Mr Bristow deposed that the Temple was “created” by him in December 2019 for the following purpose:
“7. My personal goal in creating the Temple was to create a high profile Satanic religious group that could access the special rights and privileges that are available to all religions.
8. I have become very mindful of the need for the Temple to meet the legal criteria of a religious organisation. Since starting the Temple, the activities and objectives have evolved over time as I have tried to ensure as much as possible that it qualifies as a religious organisation.
9. The Temple’s purpose is to promote three key ideas. The first is the belief in Satan as a supernatural spirit, the second is a commitment to follow the example of Satan by rebelling against the Christian God’s authority and the third is the use of classic Satanic symbols and rituals such as pentagrams, black cloaks, skulls, candles and phrases such as ‘Hail Satan’.
10. The supernatural belief of Satan that the Temple aims to promote is the Satan of the Bible. In particular, it is the Satan as described in the book of Job. This is the supernatural spirit we will preach to our students in religious instruction classes and users of our chaplaincy services.”
[24] Mr Bristow went on to depose that the Temple “encourages canons of conduct that give effect to” a belief in Satan. He continued:
“11. These are practices which challenge Christian authority and which test the faith of Christians. In a contemporary Australian context that means the Temple engages in and encourages practices such as:
Encouraging secular laws so as to reduce Christian power;
Encouraging lawful practices which many Christians disapprove of such as gay and lesbian lifestyles;
Exposing flaws in Christian values by highlighting double standards and hypocrisy;
Taking advantage of special rights and privileges that are normally only accessed by Christian groups; and
Conducting theological debates to sow seeds of doubt in the minds of Christian believers.”
Further
[29] As already mentioned, Mr Bristow was cross-examined on his affidavit. He agreed that the Temple was started by him in response to a religious discrimination Bill introduced into Federal Parliament. Part of the motivation was to persuade the Commonwealth Government to “scrap” the Bill and replace it with a Human Rights Act. The idea of a “Temple of Satan” was inspired by an American group called the “Satanic Temple” which was featured in a film called “Hail Satan”. Mr Bristow confirmed that he does not believe in any supernatural deity but asserted that this was “not the view of the Temple”. When asked to identify the followers and supporters of the Temple, Mr Bristow replied:
“Well, there’s – there are three people who actively run the Temple. And we would consider our supporters and followers mainly on our Facebook page, as well as those who’ve attended our socials and our Black Mass.”
[30] As to the Black Mass, Mr Bristow admitted that he had described it as a “blasphemous Rocky Horror Picture Show”. That was the description he used when interviewed for a podcast on 16 December 2020. During this interview, he described the Black Mass as “just a chance to have a dress up fun night”. He said it was,
“Very camp, very entertaining and it should give people a few giggles”. He went on to say:
“Satanists do not believe in Satan. They don’t believe he exists, so that’s the first principle. The only people who believe Satan exists are Christians. So it’s very funny when of course we get accused of believing and worshipping Satan, because that’s not true at all.
...
So Satan is a metaphoric symbol for us ... He is a symbol of rebellion, questioning, always questioning, and also causing a little bit of mischief as he goes along. So that’s, for us, what Satan represents. I mean it goes much deeper than that as well. It’s all about supporting bodily autonomy as I said so we support a woman’s right to choose, euthanasia, I personally support legalising drug use and we want to get religion out of politics. So these are all parts of what we call Satanic change that we want in Australia, especially secularism, that is one of our chief aims as well.”
[31] Later in the interview, Mr Bristow said that he was an atheist and that “most Satanists are atheists”. He told the interviewer that “[w]e don’t believe in the occult and the supernatural”. This view, he agreed, reflected the view of the Temple at the time of the interview although Mr Bristow said that this had changed. ...
[34] Mr Bristow also accepted that, for an article published by the Star Observer on 18 October 2020, he told the journalist that the Temple was established “in response to the Morrison Government’s proposal for a religious discrimination Bill” and that it was “all-embracing”, adding that he would “hate to call it a religion”. He was quoted accurately as saying “[w]e don’t believe that Satan exists”. He also said, “it’s completely non-religious and secular, but it seems to have caused a lot of irritation”. Similarly, Mr Bristow accepted the accuracy of a quote attributed to him in an article published by The Courier Mail on 24 April 2021 to the effect that he did not “worship anything except myself” and that he did not believe in “Satan as a supernatural being”.
[35] Towards the conclusion of his cross-examination, several propositions were put to Mr Bristow. When doing so, he said that he understood the common belief of the Temple to be “disdain and distrust of Christians”. He accepted that there had been “no regular process of worship”, and that both theistic and non-theistic Satanists are welcomed. Indeed, he agreed that he did not care what the belief of the members was and that they could “believe in whatever they like”. Further, he accepted that it was not a requirement for members of the Temple to believe in any kind of supernatural being. No vow was administered or oath taken, and no other obligation was imposed on them.
That's damning (unintended pun) in terms of Australian case law.
Burns J states
[38] This case has nothing at all to do with the question whether Satanism is a religion. Nor is it necessary to define what Satanism might be. Rather what is left of this case is only concerned with the question whether, on the evidence, the Temple is a religious denomination or society within the meaning of s 76(1) of the Education Act.
[39] Of course, a religious denomination or society must necessarily pertain in some way to a religion or religions and that is why the submissions on both sides were directed in no small way to the legal characteristics of a religion and, on that point at least, there was common ground.
[40] As to that, in The Church of the New Faith v The Commissioner of Pay-Roll Tax (Vic), Mason ACJ and Brennan J, held that:
“... 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.”
[41] To determine whether a particular entity fulfills these criteria, an examination of the beliefs, practices and observances of its adherents is required. Mere assertion is not enough, and a claim that is rightly to be regarded as “not serious but merely a hoax” will not satisfy the prescription. There must be “a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages” and, because of that, “mere ritual ... devoid of religious motivation, would be a charade”. ...
Burns J concludes
[47] The Temple has no genuine connection to anything pertaining to religion. There is certainly no evidence of a shared belief in a supernatural being, thing or principle, let alone canons of conduct to give effect to such a belief. To the extent that Mr Bell submitted that the Temple amounted to a “religious society”, no common element pertaining to or concerned with a religion (or religions) was in evidence. Indeed, as best I can ascertain on the evidence, the identified members of the Temple are wholly irreligious. None of this should be surprising because the Temple was not formed (and nor has it been conducted) as a religious denomination or society; the sole reason for its existence was (and remains) to push a political barrow.
[48] It was therefore concerning to wade through what was advanced about the Temple to the school principals, the Deputy Director-General and this court. For example, it was claimed in the Forms that the “Satanic Religious Instruction” to be provided to students will include “information about the religion of Satanism, including belief in Satan as a supernatural being, the canons of conduct and the tenets”. In Mr Bristow’s letter to the Deputy Director-General of 12 March 2021, the claim was made that “[w]e are a religion” and that the Temple was a “church” with a “religious purpose”. In his affidavit, Mr Bristow deposed that the Temple was “devoted to the education, practice, celebration and promotion of the religion of Satanism” and that the “Temple’s purpose” included the promotion of a “belief in Satan as a supernatural spirit” and a “commitment to follow the example of Satan”. Then, Mr Bristow affirmed that the “supernatural belief of Satan that the Temple aims to promote is the Satan of the Bible” and that “[t]his is the supernatural spirit we will preach to our students in religious instruction classes.”
[49] Aided by Mr Bell and perhaps another, Mr Bristow’s attempt to obtain approval to deliver “Satanic” religious instruction in State schools was nothing more glorified than a base political stunt. His persistence with that attempt through the medium of this proceeding has resulted in a deplorable waste of the resources of the State which had to be marshalled in opposition to the relief sought and the needless allocation of court time and resources to deal with it.
[50] I have no doubt that the parts of Mr Bristow’s affidavit to which I have just referred are untrue. Whether his affirmation of those parts was deliberate and material to the outcome of this application will be for others to consider. A direction will accordingly be made to determine whether the court should initiate that consideration.
