Satanic Religious Instruction Sought by Applicant

Bell v State of Queensland [2022] QSC 80 (6 May 2022)

The applicant sought approval under s 76(1) of Education (General Provisions) Act 2006 (Qld) to deliver “Satanic” religious instruction in State schools.  The approval was refused.  The applicant applied under Part 3 of the Judicial Review Act 1991 (Qld) for a statutory order of review of that refusal.  The Court, in ruling upon this dispute, assessed whether the Noosa Temple of Satan is a religious denomination or society for the purposes of s 76(1) of Education (General Provisions) Act 2006 (Qld).

Facts:

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 an 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.  Mr Bell seeks a statutory order of review in relation to that “decision” and, further, orders setting the “decision” aside along with a declaration to the effect that the Temple is a religious denomination or society.  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”.  The Forms eventually found their way to a senior officer of the Department of Education. 

On 5 March 2021, the Deputy Director-General of the Department of Education forwarded a letter to Mr Bristow stating that 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.  On 12 March 2021, Mr Bristow replied to the letter asking that the Department reconsider its decision by Friday the 20^th of March 2021 otherwise he will proceed with court action seeking a declaration.  The Deputy Director-General 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.

Issue:

Whether or not a declaration should be made that the Noosa Temple of Satan is a religious denomination or society for the purposes of s 76(1) of Education (General Provisions) Act 2006 (Qld).

Applicable law:

Education (General Provisions) Act 2006 (Qld), s 76 - provides that any minister of a religious denomination or society, or an accredited representative of a religious denomination or society, which representative has been approved by the Minister for the purpose, shall be entitled during school hours to give to the students in attendance at a State school who are members of the denomination or society of which the person is a minister or the accredited representative religious instruction in accordance with regulations prescribed in that behalf during a period not exceeding 1 hour in each week on such day as the principal of that school appoints.

Judicial Review Act 1991 (Qld) s 43 - provides that if the court considers that the relief sought should not be granted on an application for review but that the relief may have been granted if it had been sought “in an action begun by writ of summons or originating summons by the applicant at the time of starting the application for review”, the court may, instead of refusing the application, order the proceeding to continue as if it had begun” in that way.

Buck v Comcare [1996] FCA 1485; (1996) 66 FCR 359 - provides that the entitlement under s 76(1) does not allow for any “administrative choice”; the prescription – a religious denomination or society – is “either met or not met independently of any action, inaction, knowledge or opinion of a person administering” the Education Act.

Church of Christ (Non-Denominational) Inc v Minister for Territories and Local Government [1985] FCA 391; (1985) 61 ALR 541 - pursuant to which it is unnecessary to decide whether, as the respondent submitted, a “reasonably substantial membership” was required to constitute a denomination or society.

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 - relied upon in holding  that the entity’s character as a “religious denomination or society” is a jurisdictional fact which must exist before a minister of the religious denomination or society has any entitlement to provide religious instruction or before an accredited representative of the religious denomination or society may be approved by the Minister for Education (or her delegate) for that purpose.

Lyons v Queensland [2016] HCA 38; (2016) 259 CLR 518 - provides that the entitlement under s 76(1) does not allow for any “administrative choice”; the prescription – a religious denomination or society – is “either met or not met independently of any action, inaction, knowledge or opinion of a person administering” the Education Act.

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 - provides that part of the relief sought pursuant to s 30 of the JR Act – an order setting aside the “decision” – is misconceived. Such an order would, if made, be in the nature of certiorari but that remedy will not be available where a decision has “no legal effect or consequence” because there is “nothing to be quashed”

Sica v Attorney-General for the State of Queensland [2021] QSC 309 - provides that if the court considers that the relief sought should not be granted on an application for review but that the relief may have been granted if it had been sought “in an action begun by writ of summons or originating summons by the applicant at the time of starting the application for review”, the court may, instead of refusing the application, order the proceeding to continue as if it had begun” in that way. 

The Church of the New Faith v The Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 - provides 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.

Theosophical Foundation Pty Ltd v Commissioner of Land Tax (1966) 67 SR (NSW) 70 - observed that although in its “primary sense”, “religious society” had a meaning equivalent to “religious denomination”, it:

“... may also comprehend more limited bodies of persons as, for example, religious orders and societies for specific religious purposes such as missionary societies. 

Watkins v Commissioner for Corporate Affairs [2021] SACAT 10 - provides that a claim that is rightly to be regarded as “not serious but merely a hoax” will not satisfy the prescription. 

XYZ v The Commonwealth [2006] HCA 25; (2006) 227 CLR 532 - relied upon in holding that Mr Bell’s attempt to fragment the expression to search for a favourable meaning must be rejected. 

Analysis:

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.  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.

Only one other person (the graphic designer) was identified by the evidence as a member of the Temple.  Reliance on Facebook followers and page likers as members of the Temple and therefore adherents is an absurd notion.  Similarly, reliance on the sending by three parents of emails to school principals as some measure of support for the assertion that the Temple was composed of some followers who were interested in Satanism is unsound because there is no evidence that any of those parents were members of the Temple.

Conclusion:

The Court dismissed the application.  The witness, Robin Bristow, is directed to show cause within fourteen days why a copy of the affidavits read on the hearing of this application, the exhibits tendered at that hearing, the transcript of his oral evidence at that hearing and this judgment should not be provided to the Director of Public Prosecutions (Qld) or the Commissioner of the Queensland Police Service to consider whether a prosecution should be commenced in relation to the affidavit he affirmed on 13 May 2021 and/or the evidence he gave at the hearing.