When is the Advancement of Religion Not a Charitable Purpose?

• Author: Pauline Ridge
• Position: Professor, ANU College of Law, Australian National University
• Pages: 360-397

When is the Advancement of

Religion Not a Charitable Purpose?

Pauline Ridge*

is article addresses the question of why religious groups receive charitable status in

relation to religious activities by considering when the current law does not grant

charitable status to purposes that advance religion. e jurisdictional focus is upon

Australian law, with some reference to other jurisdictions whose law also derives from

the English common law of charity. After an overview of the charity law landscape in

Australia, this article explains and critically evaluates the grounds upon which charitable

status may be refused to purposes that advance religion. is article then considers two

issues that have emerged in twenty f‌irst century charity law and that are relevant to the

charitable status of religious groups. ese concern human rights, particularly the right

to freedom of religion, and the use of charity law to regulate religious activity.

* Australian National University. e f‌irst draft of this article was prepared

during a visiting fellowship at the Centre for Studies in Religion and

Society, University of Victoria, Canada. I thank the members of the

Centre and Professor Kathryn Chan, Faculty of Law, for their generous

support in that endeavour.

361

(2020) 6 CJCCL

I. I

II. O O T L A R L I A

III. D B T C S

A. Introduction

B. e Def‌inition of ‘Advancement of Religion’ in Australian Charity Law

C. e Def‌inition of ‘Religion’ in English Charity Law

D. e Def‌inition of ‘Advancement of Religion’ in Irish Charity Law

IV. D B U T ‘P’ E O C

A. Introduction

B. Restrictions on Public Access to Worship

C. Members Linked by Blood or Other Private Association

D. Private Prof‌it

V. D D T P D

A. Introduction

B. Unlawful Purposes

C. Evidential Questions

D. Can Lawful Religious Purposes be Disqualif‌ied on Public Detriment

Grounds?

VI. H R C

A. Introduction

B. Reliance on Human Rights by Religious Groups in Relation to

Advancement of Religion

C. Should the Advancement of Religion be Subject to Human Rights

Standards?

VII. C S A A M O S R C O

R G

VIII. C

I. Introduction

The charitable status of religious purposes has come under public

scrutiny in the twenty-f‌irst century. Whilst some faith-motivated

activities traditionally undertaken by religious groups, such as health

care, aged care and welfare services, are of obvious benef‌it to society as

a whole, why does the manifestation of religious faith through purely

religious activity, such as worship, prayer and ritual (described in

362

Ridge, When is the Advancement of Religion Not a Charitable Purpose?

charity law as the ‘advancement of religion’) also qualify for the valuable

reputational, legal and f‌iscal privileges associated with charitable status?

is question has been brought into sharper focus by radical changes

to the law in some jurisdictions. In England and Wales, for example,

all charitable purposes must now be of demonstrable ‘public benef‌it’;

this has placed the question of the public benef‌it of the advancement of

religion particularly in the spotlight.1 Changes in the public perception

of religion are also a contributing factor. In Australia, for example, the

public respect and deference traditionally accorded to religion appears

to be waning. Public trust in institutional religion was shaken by the

f‌indings of the Royal Commission into Institutional Responses to Child

Sexual Abuse2 and this has been exacerbated by the disjuncture between

general public sentiment and conservative religious groups’ vocal

opposition to the same sex marriage reforms of the Commonwealth of

Australia (“Commonwealth Government”) in 2017.3

Eligibility for charitable status in relation to purely religious activities

is of profound importance to religious groups, for whom the predominant

sources of funding in common law countries such as Australia are the

gifts of group members, investments and commercial activity.4 e value

of almost all of these sources of funding is boosted by the legal and f‌iscal

privileges conferred by the state upon religious groups and religious

purposes through the mechanism of charitable status.5

e question whether purposes for the advancement of religion are

charitable is most often framed in terms of the public benef‌it element

of charity law. Legal scholarship to date has focused upon clarifying the

relevant law in this respect (is there a presumption of public benef‌it at

common law in relation to the advancement of religion and what does

public benef‌it entail in that doctrinal context?) or upon the public

benef‌it rationale for conferring charitable status for the advancement