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Australia and New Zealand
This pages considers blasphemy regimes in Australia and New
Zealand.
It covers -
It
complements the separate profile on the history of Australian
censorship regimes that provides a more detailed discussion
of legislation, cases, inquiries and other developments.
Particular cases are discussed in the following page of
this profile.
introduction
As noted in our discussion of censorship, the first governor
and judges of the colony in New South Wales unpacked existing
English enactments and case law that encompassed public speech
and published literature, with sanctions for example regarding
all
blasphemies against God as denying His being or provenance
... or profane scoffing at Holy Scriptures or exposing any
part of them to contempt or ridicule
... seditious words, in derogation of the established religion
are indictable as tending to a breach of the peace.
The
persistence of that law - albeit increasingly as a curiosity
- is reflected in action by Reverend Ogle and Reverend Father
O'Neill during 1986 against the film Je Vous Salue Maria
under blasphemy provisions and the 1997 'Piss Christ'
case (Pell v Trustees of NGV) by the Roman Catholic
Archbishop of Melbourne to suppress a work in the National
Gallery of Victoria.
Justice Harper in the latter case commented that blasphemous
libel was an anachronism (from a time when the State in England
was intrinsically linked with the Church through the Ecclesiastical
courts), noting that section 116 of the Australian Constitution
forbids the Commonwealth from making a law for establishing
any religion and that Victoria does not recognise an established
Church.
At the state level blasphemy - generally identified as 'blasphemous
libel' - has largely been bundled in Summary Offences and
Criminal Code legislation with other desiderata such as prohibitions
on "interfering with corpses", "pretending
to witchcraft" or disturbing/interrupting religious worship
and molesting preachers. Some observers have suggested that
blasphemous libel, where not explicitly abolished, may have
simply lapsed through disuse over the past century.
Commonwealth
The shape of the federal government's responsibilities under
the Constitution and
the progressive updating of enactments mean that at the national
level blasphemy is not an offence in common law and that there
are few explicit references to blasphemy in federal legislation.
There is for example there is no express offence of blasphemous
libel in the Crimes Act 1914.
The Australian Law Reform Commission (ALRC) commented
in 1991 that
In
a society in which there are many religions, it is not appropriate
to give the special protection that blasphemy affords to
only one of these and to extend the law of blasphemy would
involve a determination of which organisations are religions.
That reflected the ALRC's assessment that strictly Australian
blasphemy law "only protects the customs, usages and
practices of the Church of England, not even of all Christian
faiths". The Commission noted that developing a "satisfactory
definition of religion" would unreasonably interfere
with freedom of speech.
References to blasphemy in the federal code centre on censorship
law: there are no references to blasphemy or associated offences
in the Crimes Act 1914. Regulation 4A of the Customs
(Prohibited Imports) Regulations 1956 formerly prohibited
importation of "blasphemous material" without the
written permission of the Attorney-General. The complementary
Customs (Cinematograph Films) Regulations prohibited
registration of imported films and advertising matter that
was blasphemous. Criteria used by the Office of Film &
Literature Classification for assessing the suitability of
works for distribution in Australia similarly included the
presence of blasphemous material.
Section 118 of the Broadcasting & Television Act 1942
provides for restrictions on the broadcasting of "objectionable
items -
(1)
The [Australian Broadcasting] Corporation, the SBS or a
licensee shall not broadcast matter which is blasphemous,
indecent or obscene.
(2) A person shall not render for broadcasting an item,
or pass or select for broadcasting an item, which contains
matter which is blasphemous, indecent or obscene.
The Act does not define 'blasphemous'.
An offence of sending blasphemous material through the post
was abolished in 1989, replaced by the offence of using postal
or telecommunications services to menace or harass a person,
or in a manner that would be regarded by reasonable persons
as "offensive" in the circumstances.
Prior to that time officials were authorised to
refuse
to receive or transmit a telegram containing blasphemous,
indecent, obscene, offensive or scandalous matter in its
contents address or signature
at
any time cause any postal article having anything profane,
blasphemous, indecent, obscene, offensive or libellous written
or drawn on the outside thereof or any obscene enclosure
in any postal article to be destroyed.
Shipping
registration regulations prohibit registration of vessels
with
(d)
names that are blasphemous or likely to be offensive to
members of the public;
(e) names of, or suggesting connection with, members of
the Royal family or suggesting Royal patronage
Australian states and territories
Treatment of blasphemy in the legislation of the Australian
states and territories is uneven, with provisions in some
criminal codes (generally dealing with prosecution of blasphemy
as a common law offence) and recognition of blasphemy as a
basis for restricting access to literature or other content.
The Australian Capital Territory adapted the New South Wales
Crimes Act 1900, recognising an offence of blasphemy.
Section 440
of the ACT Crimes Act 1900 accordingly provides
No
person shall be liable to prosecution in respect of any
publication by him or her, orally or otherwise, of words
or matter charged as blasphemous, if the publication is
by way of argument, or statement, and not for the purpose
of scoffing or reviling, nor of violating public decency,
nor in any way tending to a breach of the peace
Section 4 of the Territory's Law Reform (Abolitions &
Repeals) Act 1996, concerned with the abolition of "certain
common law misdemeanours", specified
that
The common law misdemeanours of criminal libel, blasphemous
libel, seditious libel and obscene libel are abolished.
In New South Wales, where blasphemy is a common law offence,
section 574
of the NSW Crimes Act 1900 provides that
No
person shall be liable to prosecution in respect of any
publication by him or her orally, or otherwise, of words
or matter charged as blasphemous, where the same is by way
of argument, or statement, and not for the purpose of scoffing
or reviling, nor of violating public decency, nor in any
manner tending to a breach of the peace
Queensland
took blasphemy out of its criminal code in 1899, when it was
omitted during the large-scale codification of the colony's
criminal law - tacitly disappearing in line with Sir Samuel
Walker Griffith's comment that the code did not deal with
those provisions of English law that were "manifestly
obsolete or inapplicable to Australia".
As with other states, blasphemy is recognised as 'offensive'
or 'objectionable' in censorship law: the Queensland Objectionable
Literature Act 1954 authorises the Literature Board of
Review to restrict distribution of literature deemed "objectionable",
including matter that is "blasphemous".
In South Australia blasphemy is also a common law offence.
A 1977 report by the state's Criminal Law & Penal Methods
Reform Committee noted that although blasphemy was an offence
"today it would seem anachronistic to charge anyone with
blasphemous libel" and accordingly recommended its abolition.
It is however recognised
in the Classification of Theatrical Performances Act 1978
and video & games classification legislation.
The Tasmanian Criminal Code features an explicit reference
to blasphemy, although unlike the New South Wales legislation
there is no statutory reference to a breach of the peace.
Section 119 of the Tasmanian Criminal Code Act 1924
(an element of "Acts Injurious to the Public in General
- Crimes Relating to Religion") provides that
(1)
Any person who, by words spoken or intended to be read,
wilfully publishes a blasphemous libel is guilty of a crime.
Charge: Blasphemy.
(2) The question whether any matter so published is or is
not blasphemous is a question of fact.
(3) It is not an offence under this section to express in
good faith and in decent language, or to attempt to establish
by arguments used in good faith and conveyed in decent language,
any opinion whatever upon any religious subject.
(4) No person shall be prosecuted under this section without
the consent in writing of the Attorney-General.
In Victoria the offence may exist as a common law crime, reflected
in Section 469AA
of the Crimes Act 1956. Prior to the 1990s the last
attempt to prosecute blasphemy as a common law offence occurred
in 1919; the NSW Law Reform Commission report notes that the
charges were dropped by the Crown prior to the trial.
Victorian legislation features prohibitions against blasphemous
speech, with the Transport (Passenger Vehicles) Regulations
1994 for example providing
that anyone on a a public passenger vehicle must not
(2)
(a) use any blasphemous, indecent, insulting, offensive,
profane, violent or threatening language or gesture to the
annoyance or hindrance of any other person
Section
4 of the Western Australian Criminal Code Act Compilation
Act 1913 - similar to section 5 of the Queensland Criminal
Code Act 1899 - abolished the offence of blasphemy through
failure to include that offence in the WA code. However, various
prohibitions remain in place.
The 1940 Jetties Act Regulations for example provide
that
45
(b) No person shall behave in a violent or offensive manner
to the annoyance of others, or write or use any insulting,
indecent, obscene, blasphemous, or abusive words, or wilfully
interfere with the comfort of any person in or upon any
jetty, shed, vehicle, or premises of the Department.
New
Zealand
The New Zealand regime has followed the same trajectory as
that in Australia.
Section 123 of the New Zealand Crimes Act 1961, dealing
with "blasphemous libel" as part of "crimes
against religion, morality and public welfare", is similar
to section 119 of the Tasmanian Criminal Code.
It provides for
(1)
Every one is liable to imprisonment for a term not exceeding
one year who publishes any blasphemous libel.
(2) Whether any particular published matter is or is not
a blasphemous libel is a question of fact.
(3) It is not an offence against this section to express
in good faith and in decent language, or to attempt to establish
by arguments used in good faith and conveyed in decent language,
any opinion whatever on any religious subject.
(4) No one shall be prosecuted for an offence against this
section without the leave of the Attorney-General, who before
giving leave may make such inquiries as he thinks fit.
The
last reported prosecution was in 1922, after Labour newspaper
The Maoriland Worker published Siegfried Sassoon's
'blasphemous poem' Stand-To: Good Friday Morning:
I'd been on duty from two till four.
I went and stared at the dug-out door.
Down in the frowst I heard them snore.
'Stand to!' ...
Deep in water I splashed my way
Up the trench to our bogged front line.
Rain had fallen the whole damned night.
O Jesus, send me a wound to-day,
And I'll believe in Your bread and wine,
And get my bloody old sins washed white!
The
publisher was acquitted.
In 2001 the Minister of Justice Phil Goff responded to calls
for excision of blasphemy from the Crimes Act by commenting
that
this
offence still fulfils a function in our law in terms of
respecting the beliefs of the various religious communities
that exist in New Zealand
The
comment followed an unsuccessful private prosecution by MP
John Banks during 1998 of the Te Papa national museum for
display of the Virgin in a Condom artwork; Banks'
action was refused by the Solicitor-General.
In ratifying the International Covenant on Civil &
Political Rights New Zealand reserved the right not to
introduce "further legislation" with regard to Article
20, on the basis that existing law encompassed
- the
offence of inciting racial disharmony or hostility between
different classes of persons as may endanger public safety,
notably the Human Rights Act 1993 and section 81(1)
of the Crimes Act 1961
- the
offence of disturbing religious congregations in public
places or assembled for public worship, eg the Summary
Offences Act 1981 and Maori Community Development
Act 1962
- restrictions
on the use of profane language, eg the Telecommunications
Act 1987 and Penal Institutions Act 1954
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