Church of Christ (Non-Denominational) Incorporated v Minister for Territories & Local Government

[1985] FCA 391

Re: CHURCH OF CHRIST (NON-DENOMINATIONAL) INCORPORATED
And: MINISTER FOR TERRITORIES AND LOCAL GOVERNMENT
No. ACT G.56 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Davies J.

CATCHWORDS

Administrative Law - judicial review - application by association for lease of land for church purposes - decision that association not a separate denomination - whether error of law - meaning of "denomination"

Words and phrases - "denomination"

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s.5

Church Lands Leases Ordinance 1924 (ACT)

Church of New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 49 ALR 65

Kick v Donne (1917) LGR 498

Oaten v Auty (1919) LGR 697

Welsh v The Lord Advocate (1956) SC(HL) 126; (1956) 3 All ER 129

Commissioner of Land Tax for the State of New South Wales v Joyce (1974) 132 CLR 22

HEARING

CANBERRA
#DATE 9:8:1985

ORDER

1. The decision of the Minister of State for Territories and Local Government be set aside and the matter remitted to him for re-consideration.

2. The respondent to pay the applicant's costs to be taxed.

JUDGE1

The applicant, the Church of Christ (Non-Denominational) Incorporated, is an association which was incorporated in 1972 under the Associations Incorporation Ordinance 1953 (ACT). It is one of many such churches known together as the churches of Christ (non-denominational). Meetings of members of the Association had taken place for some five years before incorporation. Since 1972, there have been about twenty (20) members of the Association, all residents of the Australian Capital Territory.

1. On 28 December 1980, the applicant applied for "an allocation of leasehold land" in the Weston Creek area in the Territory on which to erect a building to be used as a meeting place. This application did not purport to be made under any particular legislative enactment. Communications passed between officers of the Department of the Capital Territory and the applicant and on 19 April 1982 the applicant requested that its application be treated as one made under the Church Lands Leases Ordinance 1924 (ACT) ("the Ordinance"). After further communication, the application was rejected by letter of 7 December 1982 and an offer made of a lease of land in the Weston area under the Leases (Special Purposes) Ordinance 1925 (ACT), in essence a lease on concessional terms. On 28 June 1983, the applicant, through its solicitors, furnished further information and requested a re-consideration of the earlier decision. The application was again rejected and the offer under the Leases (Special Purposes) Ordinance reiterated. On 7 December 1983, the applicant requested the Minister for Territories and Local Government to review these decisions. On 15 February 1984, Mr J.D. Enfield, delegate of the Minister, again rejected the application and reiterated the offer. On 3 May 1984, the applicant sought a statement of reasons pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") from the Minister. On 6 June 1984, the applicant was notified that reasons would not be furnished as the application for reasons was out of time (see s.15(5)(a) of the ADJR Act). On 21 June 1984, the applicant again requested reasons. On 26 July 1984, the Minister for Territories and Local Government confirmed the refusal of the application for a lease under the Ordinance and set out his reasons for that decision.

2. It is from that decision of 26 July 1984 and from those reasons that the matter comes to this Court by way of application for an order to review.

3. Relevant provisions of the Ordinance read as follows:
   
   

"3.(1) The Minister may, subject to this Ordinance, grant leases of land for church purposes.

(2) The maximum area comprised in any one lease shall be 2 hectares.

(3) No denomination shall be entitled to more than one lease.

4. Where more than one application is made for a lease under this Ordinance in respect of the same land, preference shall be given to the application on behalf of the denomination having in the Commonwealth the greatest number of adherents as shown by the latest census.

5. Leases under this Ordinance shall be granted in perpetuity.

6. The rental payable under any lease granted under this Ordinance shall be Ten cents per annum, payable if and when demanded by the Minister.

7. Subject to this Ordinance leases granted under this Ordinance shall be subject to such covenants and conditions as the Minister determines.

7A. ...

8. No rates or taxes shall be levied upon land in respect of which any lease is granted under this Ordinance.

9. The land in respect of which any lease is granted under this Ordinance shall be used solely for church purposes.

10. For the purposes of this Ordinance land shall not be deemed to be used for church purposes unless it is used solely as a site for a church :

Provided that nothing in this section shall prevent the erection, on a site granted for a church, of a residence for clergy or a school where religious instruction only is given."

1. The letter from the Minister of 26 July 1984 read, inter alia,
   
   

"Findings on Material Questions of Fact

The findings on material questions of fact are that the Church of Christ (Non-Denominational) Incorporated, whose registered address is P.O Box 903 Canberra City, is a religious body whose congregation meets in the A.C.T. As at October 1981 this congregation was made up of about 20 adult members with an anticipated growth to 50 members over the ensuing five years. Your client is in communion with some 70 other bodies around Australia, which hold the same beliefs and from which your client receives non-essential assistance. The basic tenet of these beliefs is that the Bible is sufficiently clear to guide believers in matters of faith and practice. Your client does not belong to any defined hierarchy or national structure and is not organisationally linked with the other 70 bodies.

.....

Reasons for Decision

As an aid to the exercise of the discretion conferred by sub-section 3(1) of the Ordinance, I have adopted a policy that a Church Lands Lease should not be approved unless the applicant is a separate denomination. This question is, in turn, determined by reference to whether the body in question -

(i) has a system of belief in a supreme being

(ii) observes a form of ethical conduct

(iii) has public acceptance

(iv) has exclusivity of belief

(v) is separate in matters of doctrine, organisation and discipline, i.e. complete in itself

(vi) has some form of centralised authority

(vii) has several congregations at a number of locations around Australia and a significant number of adherents.

I have concluded in relation to criterion (iv) that your client does not have exclusivity of belief in that some 70 other bodies around Australia hold the same beliefs. I have concluded in relation to criterion (v) that although your client has separation in matters of organisation and discipline, it does not have separation in matters of doctrine because its doctrines are shared by some 70 other bodies around Australia. I have concluded in relation to criterion (vii) that your client does not have several congregations at a number of locations around Australia nor does it have a significant number of adherents. Having regard to my conclusions in relation to criteria (iv), (v) and (vii), I have determined that your client is not a separate denomination and that in accordance with the aforementioned policy the grant of a Church Lands Lease should be refused."

1. It was argued by Mr F.J. Purnell, of counsel, who, with Mr P. Johnston, appeared for the applicant, that an error of law was made by the Minister in his decision and was apparent from the terms of that letter. The case was put on the basis that the Minister took into account irrelevant considerations and failed to take into account relevant considerations (ADJR Act, s.5(1)(e); s.5(2)(a) and (b)). Counsel for the respondent, Mr L. Katz, submitted that if any error was exposed by the reasons, it was one of fact only and was not reviewable.

2. I may say at once that I am of the opinion that the Minister gave to the term "denomination" a precision which, in my opinion, it does not bear. Each of the words "religion", "church" and "denomination" is of wide denotation. Of the question, "What is a religion?" Wilson and Deane JJ said, in Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 49 ALR 65 at 106 :
   
   

"... There is no single characteristic which can be laid down as constituting a formularised legal criterion, whether of inclusion or exclusion, of whether a particular system of ideas and practices constitutes a religion within a particular State of the Commonwealth. The most that can be done is to formulate the more important of the indicia or guidelines by reference to which that question falls to be answered. Those indicia must, in the view we take, be derived by empirical observation of accepted religions. They are liable to vary with changing social conditions and the relative importance of any particular one of them will vary from case to case. We briefly outline hereunder what we consider to be the more important of them. In so doing, we are conscious of the fact that we are, of necessity, venturing into a field which is more the domain of the student of comparative religion than that of the lawyer.

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) 592 F 2d 197) is that the adherents themselves see the collection of ideas and/or practices as constituting a religion."

1. The Oxford English Dictionary gives the following relevant meanings of the word "church" :
   
   

"4. The community or whole body of Christ's faithful people collectively; all who are spiritually united to Christ as 'Head of the Church'. More fully described as the Church Universal or Catholic.

.....

5. A particular organized Christian society, considered either as the only true representative, or as a distinct branch, of the Church universal, separated by peculiarities of doctrine, worship or organization, or confined to limits territorial or historical : e.g. the primitive church, the Latin Ch., Greek Ch., Orthodox Ch., Gallican Ch., Nestorian Ch., Ancient British Ch., Anglo-Saxon Ch., Lutheran Ch., Reformed Ch., Waldensian Ch., Ch. of England (see b.), of Scotland, Free Ch. of Scotland, United Presbyterian Ch., American Episcopal Ch., Methodist Episcopal Ch., etc.

.....

10. A congregation of Christians locally organized into a society for religious worship and spiritual purposes, under the direction of one set of spiritual office-bearers.

.....

14. Applied to other (chiefly modern) religious societies and organizations (e.g. the Church of Humanity, the Positivists or Comtists; the Church of the Latter-day Saints or Mormons etc.); and sometimes, more vaguely, to any 'school' or party having the bond of a common 'creed', social, aesthetical, or other, or who are combined in any movement which furnishes them with principles of life or duty."

Thus, the word "church" can be used appropriately to describe either the total Christian community, a congregation of Christians locally organised or a religious society or organisation other than Christian.

1. The word "denomination" is easier to define, but it is no more precise. The Oxford English Dictionary gives this relevant meaning:
   
   

"5. A collection of individuals classed together under the same name; now almost always spec. a religious sect or body having a common faith and organization, and designated by a distinctive name."

1. There are several reported cases which give greater clarity to this meaning. In Kick v Donne (1917) Knight's Local Government Reports 498, the appellant was a grocer. He had been convicted of being an absentee for the purpose of military service. Justices of the Divisional Court stated a case for the High Court of Justice. The appellant had argued that he was a regular minister of a denomination and thus exempt from military service under the Military Service Act 1916 (UK). He was a member of the Undenominational Church at Curry Rivell. The question on appeal was whether the Undenominational Church was a religious denomination of which the appellant was a regular minister. The Church only existed in Curry Rivell. It was argued for the appellant that if even two people chose to agree on principles of faith they could constitute themselves a religious denomination. Viscount Reading CJ rejected this argument as an absurdity. Viscount Reading referred to Hawkes v Moxey (1917) 15 LGR 420 where it had been held that the meaning of "religious denomination" within the Military Service Act was a question of degree. His Lordship went on to say -
   
   

"Three or four or five persons who come together and agree on certain principles or tenets cannot be held to constitute a religious denomination within the Act. I am not prepared to say that if the Justices find as a fact that this 'Undenominational Church,' although it may have 35 adult members, does not constitute a religious denomination, they have so found contrary to the law. It is easy to see that where a sufficient number of persons are banded together for the purpose pf practising religion based on certain principles, there would be no ground for saying that it was not a religious denomination, but until that point be arrived at there is room for difference of opinion. ...".

1. A similar question in a military service context was again raised in Oaten v Auty (1919) Knight's Local Government Reports 697. The applicant there contended that he was a regular minister of the "Spiritualists". The Spiritualists' National Union, Limited, was a company limited by guarantee. The Appeal Court refused to interfere with the finding that the corporation was not a religious denomination, that conclusion being open on the facts before the Justices. In the course of judgment, Darling J said, at p.712 -
   
   

"It is difficult to say ... whether the main purposes of a body, if it be a denomination, are religious, so as to entitle it to be called a religious denomination. There are many different religions and many different denominations. In this country there used to be so many that it was a saying of Voltaire that in England there were 361 sects and only one source. There are many different bodies which are denominations and really religious denominations, and this may be one of them. ... The appellant stated that they did not believe in a creed. If the members may believe what they like it cannot be a denomination. ...".

1. In Walsh v The Lord Advocate (1956) 3 All ER 129, a "congregation servant" in the "Jehovah's Witnesses" claimed exemption from military service. In the House of Lords, the issue was only whether he was a "regular minister". The respondent conceded for the purposes of the case that the finding of the Lord Ordinary in the Court below on the "religious denomination" issue was correct. Lord Strachan, the Lord Ordinary, made the following comments in his judgment (1956) SC(HL) 126, at pp.131-132 -
   
   

"... I do not now, propose to formulate any general definition to meet all cases but I am definitely of opinion that a body such as Jehovah's Witnesses must be a religious denomination if the following conditions are satisfied :- (a) if it exists for religious purposes, (b) if it professes religious beliefs which are distinctive in the sense that they distinguish it from other religious bodies,

(c) if it is organised as a separate body under its own system of worship, government and discipline, and (d) if its membership is reasonably substantial. ...".

1. In Commissioner of Land Tax for the State of New South Wales v Joyce (1974) 132 CLR 22, the Court considered s.10(1) of the Land Tax Management Act 1956 (NSW). That section exempted certain lands from taxation under the Act, including lands used as a site for, inter alia, a place of worship for a religious society. Stephen J (with whom Gibbs and Mason JJ expressed general agreement) said at page 35 that the phrase "religious society" in s.10(1)
   
   

"...has been said to bear the intended primary sense of a religious denomination (Theosophical Foundation Pty. Ltd. v. Commissioner of Land Tax

(1966) 67 SR(NSW) 70, at p 82, per Sugerman J.A., Christian Enterprises Ltd. v. Commissioner of Land Tax (1968) 88 WN Pt 2 (N.S.W.) 112, at p 121, per Walsh J.A) ...".

Mr Justice Stephen held that the Christian sect known as "The Brethren" answered the description of a religious denomination. The Brethren had no written rules or constitution but that fact was not considered crucial. His Honour said, at p.35,

"...the distinguishing features of a common belief and common acceptance of recognized doctrine clearly identify members of the Brethren and this is accompanied by the outward manifestation of regular worship together in congregations, the members of which are very conscious of their membership, ...".

Membership of the Brethren was world-wide and there were about fifty small congregations in Sydney. Membership when attained was membership not of a particular congregation but of the whole company of Brethren throughout the world. Stephen J noted at p.34

"There is no Australia-wide organization of Brethren and to the extent that anything in the nature of organization may be said to exist it appears to be based upon groups identified by residence within a particular city. The denomination is not only recognized for the purposes of the Commonwealth Marriage Act but also features in the Commonwealth and State Year Books as a named Christian denomination, being the smallest of all separately identified sects, having had, at the time of the 1966 census, some 15,000 members through Australia, and some 4,500 in New South Wales."

1. I turn now to the decision under review. In his letter of 26 July 1984, the Minister stated that a lease "should not be approved unless the applicant is a separate denomination". This statement is clearly correct. The Ordinance intends that a lease shall be granted to a denomination for church purposes, that is to say, as a site for a church (the building) and for the ancillary purposes mentioned in s.10.

2. However, the Minister went on to say that the question whether or not a body is a separate denomination is to be determined by reference to seven criteria which he specified. I do not myself think that one should stray far from the OED definition, namely, "religious sect or body having a common faith and organization, and designated by a distinctive name". But the Minister did so and it is necessary therefore to look at the criteria which he specified. It is unnecessary and undesirable that I comment upon the criteria (i), (ii), (iii) and (vi), as the Minister made no unfavourable finding on them in so far as the applicant is concerned.

3. The Minister considered that the applicant did not satisfy criteria (iv) and (v), that is to say, it did not have exclusivity of belief and was not separate in matters of doctrine, organisation and discipline. He referred to the fact that there were some seventy other like bodies around Australia which held the same beliefs. I would observe that the word "denomination" is not so precise a word as necessarily to exclude from its ambit separate bodies which have beliefs similar to others. The word "denomination" is appropriately used in relation to a sect, notwithstanding that the sect, although separate in organisation, is part of a wider church.

4. Criteria (vii) specified by the Minister requires, first, that there be several congregations at a number of locations around Australia and, secondly, that there be a significant number of adherents. The first of these factors finds no justification in law and, in giving weight to this factor, the Minister was wrong. A denomination is not required to have more than one location. Mr Katz relied upon s.4 of the Ordinance but that section says nothing on this point. The Minister concluded that the applicant, having only twenty (20) members, did not have a significant number of adherents. Clearly this aspect of the matter is one of degree.

5. In my opinion, the information before the Minister and the information before the Court would not enable a firm conclusion to be drawn as to whether the applicant was or was not a denomination. Before coming to a view on that point, one would wish to know more about the churches of Christ (non-denominational). The fact that the appellation "non-denominational" appears in the name is not a sufficient reason for concluding that either the group of churches as a whole or the applicant individually is not a denomination. The appellation is no doubt a reflection of the beliefs of the members and of the separate management of the seventy or so individual organisations that make up the churches of Christ (non-denominational) in Australia. Thus, the totality of the churches of Christ (non-denominational) may well constitute a denomination. Before a decision could be taken as to whether or not each of the churches separately is a denomination, enquiry would appropriately be made as to who are the effective spiritual leaders of the churches. Does each church function separately or do the churches function as part of a totality, notwithstanding the independent organisation of each? What are the beliefs of the members? Do the beliefs constitute a common faith? Does the applicant's name distinguish it from the other churches? There are many such matters on which further information is desirable.

6. Moreover, the Minister has a discretion whether or not to grant a lease, notwithstanding that a denomination may apply for one. Section 3(1) is discretionary in terms and, in my view, in the context, ought to be read as conferring a discretion. Clearly the Minister has a duty not merely to benefit religious denominations but also to ensure that the land within the Australian Capital Territory is properly set aside for an appropriate purpose. The Ordinance confers upon the Minister authority to appropriate land within the Territory as a site for a church. In my opinion, he would be entitled to refuse to do so if the proposal to establish a church was not acceptable on town planning principles or if the number of people involved in the proposal to establish the church was not sufficient to justify setting aside land for that purpose, or for any like reason bearing upon the appropriateness of setting aside land in the Territory at a peppercorn rent as a site for a church. It is one thing to say that, if land in the Territory has been appropriated as the site for a church and the Minister makes that site available to applicants, then the Minister should comply with the provisions of s.4, namely, to give preference to the application on behalf of the denomination having the greatest number of adherents. It is another thing to say that any denomination is entitled upon request to have a piece of land set aside for it as the site for a church.

7. Moreover, it is relevant to ascertain not only whether the applicant itself may be regarded as a denomination in ordinary parlance but also whether the totality of the churches of Christ (non-denominational) constitutes a denomination. As I have said, the word "denomination" is not precise and in ordinary parlance can be used to describe a group or organisation which is part of another and larger group or organisation, the latter also properly being described as a denomination. The Ordinance has in mind that, in such event, it is the denomination being the larger group or organisation which ought to be the recipient of a lease. Section 3(2) provides that no denomination shall be entitled to more than one lease. The Ordinance intends that, if a group such as the churches of Christ (non-denominational) constitute a denomination, then only one lease shall be granted in the Australian Capital Territory to that denomination. It would not then assist the applicant to say that, in ordinary parlance, or for other purposes, the applicant itself is properly described as a denomination. In the context, it is intended that there be only one lease to a denomination and that a separate lease should not be granted to any separately organised body within that denomination which may itself, for some purposes, be described as a sect or denomination.

8. In the present circumstances, it is as important for the Minister to come to a conclusion as to whether the churches of Christ (non-denominational) constitute a denomination as it is for him to decide whether or not he could properly so describe the applicant. If he comes to the view that the churches of Christ (non-denominational) constitute a denomination, then he would be entitled, in the exercise of his discretion under the Ordinance, to offer a lease of land to that denomination but not to grant a lease to any separately incorporated church of Christ (non-denominational). There is material before the Court which suggests that the churches of Christ (non-denominational) together do constitute a denomination which could well be the recipient of a lease under the Ordinance. Paragraph 1 of the affidavit of 25 September 1984 by Stephen Richard Randall, filed on behalf of the applicant, strongly supports that conclusion. In this event, it may well be that a lease could be granted under the Ordinance to a lessee to be held for the benefit of the churches of Christ (non-denominational) but should not be granted to the applicant for the applicant's own benefit.

9. I do not wish, however, to indicate any view as to the future course to be taken. My observations above have been intended simply to illustrate the nature of the considerations to be taken into account.

10. I have come to the conclusion that the Minister approached his task on an incorrect basis. The Minister considered that the issue before him would be determined by the application of seven criteria. In my opinion, not all the criteria were necessary to a determination of the issue which the Minister considered, namely, whether the applicant was a denomination, and on this issue the Minister made an error of law. He gave to a term used in the Ordinance an interpretation which it does not bear. Moreover, the Minister failed to have regard to the discretion which the Ordinance reposed in him and to the overall intent of the Ordinance.

11. For these reasons, in my opinion, the Minister's decision should be set aside and the matter remitted to him for re-consideration. The respondent should pay the applicant's costs to be taxed.