Conclusion

This brief review of the law concerning gifts motivated by strong religious beliefs shows that notwithstanding the professed reluctance of the courts to engage in a qualitative assessment of religious belief, the law does consider the donor’s beliefs both directly and indirectly. Direct intervention in gift giving is justified on the basis of protection from exploitation: there is a strong concern regarding the power of spiritual influence with respect to inter vivos gifts motivated by religious faith but such concern lessens if the gift is testamentary. In addition, through family provision legislation, the religious motivations of a donor of testamentary gifts will be overridden if he or she has not provided for the financial needs of family members and dependents. Indirect engagement with a donor’s religious beliefs occurs through the use of objective standards in the law. Objective standards based upon societal norms of gift giving are more difficult for ‘obdurate believers’ to comply with; furthermore, the content of such standards may embed a society’s dominant religious values to the detriment of minority religions; the content of standards is also influenced by judicial religious acculturation.

What then, if anything, should be done about the law’s negotiation of the sacred in this area? First, it is important simply to be aware of the issues outlined in this chapter so that the relevant case law and legislation can be evaluated in an informed manner, and so that reform may be advocated where necessary. It is impossible for the legal regulation of religiously motivated gifts to be entirely neutral in its treatment of the religious beliefs of the donor. Indeed, we may not want complete neutrality. Rather it is a matter of self awareness on the part of those who make and apply the law. It is important to consider competing values such as freedom of religion, autonomy of gift giving and expectations of close family and dependents of the donor for example, rather than to unthinkingly impose standards of acceptable gift giving that look value neutral but in fact discriminate against minority religious groups. The question of judicial acculturation is troublesome but also can be minimised by self awareness and education.

Two recent occurrences provide some encouragement that the Australian legal system and Australian law are on the right path in negotiating the sacred. The first concerns judicial discrimination against a minority religious group’s beliefs. The NSW Court of Appeal recently overturned a finding of negligence in part because the lower court had improperly considered and criticised the defendants’ religious motivations.[33] Mason P, speaking for the court in a strongly worded judgment, made it clear that judges are expected to overcome religious acculturation:

In the eye of the law it may not be unreasonable to hold categorically divergent opinions about certain matters of faith, morality or even good taste.

The second example concerns the law of charitable trusts. Historically, a bias against Roman Catholicism was apparent in the content and application of the legal requirements for a valid charitable trust.[34] One such requirement was that the trust have a demonstrable ‘public benefit’.[35] Because of this the English courts refused to recognise trusts for the purposes of closed (predominantly Catholic) religious orders. It was said that a religious order which did not interact at all with the public could not be providing a public benefit through its activities and therefore a trust for the purposes of such an order would be invalid.[36] Not surprisingly, the Irish High Court decided differently, and strongly endorsed the value of such religious activities within Ireland holding that, ‘[M]en’s notions of public benefit will vary with the outlook of their age’.[37] The position in Australian law may have been clarified by the recent enactment of the Extension of Charitable Purpose Act 2004 (Cth). This Act provides that for the purposes of Commonwealth legislation an institution has a purpose with a public benefit if it is ‘a closed or contemplative religious order that regularly undertakes prayerful intervention at the request of members of the public’.[38] While the legislative change only applies when Commonwealth legislation is in issue, undoubtedly it will affect the case law requirement of public benefit as well.

These two recent examples are encouraging as they show that it is possible to challenge judicial bias based upon religious acculturation, and that through political action there is the opportunity for those interested in the interaction of law and religious belief to take part in law reform. Religious institutions also have an important role in regulating and educating their members about such matters.