Jeremy Patrick is a senior lecturer at the University of Southern Queensland School of Law and Justice.
In Australia, religious groups are largely able to operate with autonomy and with very little government oversight—including over the names they wish to operate under. This is not to say that the government imposes no limitations whatsoever but that any limitations will arise only in very specific contexts, and for the vast majority of religious groups the vast majority of the time, these hypothetical limitations are of no real concern. In this brief post, I canvas the contexts of denominational trademarks, incorporation, charitable registration, marriage ordination, direct legislative protection, and schism. This brief overview shows that, apart from church property disputes after a schism, judicial and legislative restrictions on religious group names are rare and scattered.
A first possible context for government limitations is denominational trademarks. Many religious groups in Australia offer goods and services in ways that can compete with traditional commercial providers: operating private schools, running hospitals, providing daycare services, and more. In a competitive situation like this, protection of a religious organization’s “brand” (and reputation) is just as important as that of any business or corporation. Thus, religious groups can trademark their names under the Trade Marks Act 1995 (Cth). The only limitations they face are the same as any secular registrant: they can’t be misleading, defamatory, offensive, and so forth.
Second, religious groups can be incorporated under state or federal law.[1] Each jurisdiction imposes limitations on the names of incorporated bodies,[2] but these limitations are not specific to religion and are the same as those imposed on secular bodies. For example, in Queensland, sections 43–45 of the Associations Incorporation Act 1981 (Qld) cover “unsuitable names,” and an associated regulation[3] provides detail on what makes a name unsuitable: referencing the royal family or the Olympics, being deceptive or misleading, and so forth.
Charitable regulation is crucial for the tax benefits Australia provides religious bodies, and this constitutes a third potential context where names are subject to possible limitation. The Australian Charities and Not-for-profits Commissioner is the national regulator in this context and is responsible for approving applications for charitable status. Religious charities, like secular ones, can be removed from the register if their names are deemed offensive, misleading, dangerous to public safety, etc.
Fourth, under the Marriage Act 1961 (Cth), a religious body must apply for government recognition for its members to be legally recognized as marriage celebrants. An updated list of all currently recognized religions is made by proclamation from time to time.[4] Although a lawsuit was once filed over an application being denied,[5] the issue in question was not about the name of the religious group.
A fifth context is interesting from the perspective of religion-state neutrality, as it involves religious groups that have proven influential enough to win special legislation to protect their names from potential competitors. For example, the Anglican Church of Australia Act 1976 (NSW) provides:
a person shall not, for the purposes of, or in connection with, any business, trade or profession use or cause or permit to be used:
- the name “Church of England”, “Church of England in Australia” or “Anglican Church of Australia”, or
- the description “Anglican”,
whether that name or description is used with other words or not, unless he has been authorised so to do by or pursuant to a Canon of the General Synod of the Church of England in Australia or the General Synod of the Anglican Church of Australia.[6]
In a way, this delegates direct legislative power to a religious group to determine the scope of its own protection, instead of involving the judiciary to decide more context-specific issues involving misleading or deceptive practices under general intellectual property or consumer protection principles.
A final context in which a religious group’s operational name can be restricted is when the group has experienced (effectively) a schism. This usually reaches the court through a dispute over ownership of church property, and Australian courts are much more willing to be involved in such disputes than U.S. courts. Accompanying a final decision over who gets the property, a court will sometimes determine which of the competing groups maintains rights to the pre-schism name[7]—a powerful symbol of which group is the “legitimate” heir to a particular religious tradition, at least in the eyes of the law. However, it’s important to note in this context that the limitation is not on the name itself but simply on which group gets to use that name.
From the general lack of controversy or litigation in Australia over legal regulation of the names of religious groups, we might plausibly make a few general inferences. Governments, at both the state and federal level, have operated in a neutral and even-handed manner, and in the contexts of recognized charities, trademarks, and incorporation, have probably only rejected as “unsuitable” those names that would be similarly rejected if adopted by a secular group. Along the same lines, it’s also reasonable to think that religious groups in Australia have been willing to work with administrative agencies to make small adjustments to their official legal names when necessary to comply with regulatory requirements, rather than becoming litigious, as we see in countries like the United States. Perhaps this is one of those rare times where we can consider it a good thing that there’s so little law on the topic at hand—as a sign of accommodation and pragmatism from both government and religion.
References:
[1] See Paul Babie, Incorporated Religious Associations, in Halsbury’s Laws of Australia s 365(6) (2022).
[2] See id.
[3] See Associations Incorporation Regulation 1999 (Qld) pt 2 (Austl.).
[4] See, e.g., Marriage (Recognised Denominations) Proclamation 2018 (Cth) (Austl.).
[5] See Nelson v. Fish (1990) 21 FCR 430 (Austl.).
[6] Anglican Church of Australia Act 1976 (NSW) s 6 (Austl.).
[7] See, e.g., Attorney-General; Ex rel Elisha v. Holy Apostolic & Catholic Church (1989) 98 ALR 327 (Austl.) (“Surely whilst religious organisations may not have ordinary commercial goodwill, they have something closely analogous thereto in that their reputation will be damaged by people ascribing as an adjunct to them the organisation which is holding itself out by a deceptively similar name.”).