THE LAW IN OTHER AUSTRALIAN JURISDICTIONS
3.1 This chapter examines the law of blasphemy in various Australian jurisdictions and in a range of overseas jurisdictions.
Tasmania
3.2 Apart from s 574 of the Crimes Act 1900 (NSW), s 119 of the Tasmanian Criminal Code is the only express statutory reference to blasphemy in the laws of the Australian States and Territories. It provides that anyone who wilfully publishes blasphemous libel (either orally or in written form) is guilty of a crime, that the question of whether the matter published is blasphemous is a question of fact and that prosecutions shall only be commenced with the consent of the Attorney-General. It also provides that “arguments used in good faith and conveyed in decent language” shall not amount to the offence. Unlike the New South Wales provision there is no statutory reference to a breach of the peace. Sections 120-121 of the Code deal with offences similar to those covered by sections 56 and 106-107 of the Crimes Act 1900 (NSW).
Queensland
3.3 When the criminal law of Queensland was codified in 1899, Sir Samuel Walker Griffith, who was responsible for the Code, expressed the opinion that it did not deal with those provisions of English law which were “manifestly obsolete or inapplicable to Australia”.1 By the combined operation of the repeal of the Blasphemy Act 1697,2 the absence of any offence of blasphemy in the Criminal Code and the provisions of s 5 of the Criminal Code Act 1899 (Qld),3 the offence was abolished in Queensland.
3.4 It should be noted, however, that the Objectionable Literature Act 1954 (Qld) prevents the distribution of literature that the Literature Board of Review deems objectionable. “Objectionable” is broadly defined to include matter that is “blasphemous” although the latter term is not defined in this context.
Western Australia
3.5 By virtue of s 4 of the Criminal Code Act Compilation Act 1913 (WA) (which essentially mirrors s 5 of the Criminal Code Act 1899 (Qld)) the failure to codify blasphemy in Western Australia abolished the offence.
Victoria
3.6 Blasphemy does not appear on the Victorian statute books but it may exist as a common law crime to the same extent as it does in New South Wales. The last attempt to prosecute for the common law offence occurred in 1919 but the charges were dropped by the Crown before trial.4
3.7 It should also be noted that s 21 of the Summary Offences Act 1966 (Vic) makes it an offence to disturb religious worship.
South Australia
3.8 The position in South Australia is similar to that in Victoria. Sections 257-259 of the Criminal Law Consolidation Act 1935 (SA) contain offences of interrupting religious worship, molesting preachers and pretending to witchcraft, the latter offence being derived from the Witchcraft Act 1735 (UK).
3.9 The Criminal Law and Penal Methods Reform Committee, reporting in 1977, concluded that while blasphemy was an offence under the common law of the State “today it would seem anachronistic to charge anyone with blasphemous libel” and accordingly recommended its abolition.5
The Northern Territory
3.10 The Northern Territory Criminal Code provides for an offence of violence to officiating ministers of worship. Although the Code was substantially based on the Queensland Criminal Code there is an argument that the Northern Territory Code is not meant to entirely displace the common law.6 If that argument is correct, certain non-statutory offences such as blasphemy may still exist.
The Australian Capital Territory
3.11 The Australian Capital Territory has adopted and modified the Crimes Act 1900 (NSW). Having emerged out of New South Wales, the position of the Australian Capital Territory in relation to the reception of the offence would be the same. Section 574 is retained in the ACT, and thus the offence of blasphemy in the Australian Capital Territory exists to the same extent as it does in New South Wales.
The Commonwealth of Australia
3.12 There are a number of references to the term “blasphemous” in federal legislation.
- The Customs (Cinematograph Films) Regulations (Cth) reg 13 prohibits the Censorship Board from registering imported films and advertising matter which are, amongst other things, blasphemous.
- The criteria used by the Film and Literature Board of Review for assessing the suitability of books for distribution in Australia include the presence of blasphemous material.
- The Customs (Prohibited Imports) Regulations (Cth) reg 4A prohibits the importation of blasphemous material without the written permission of the Attorney-General.
- Section 118 of the Broadcasting and Television Act 1942 (Cth) provides that the Australian Broadcasting Commission and licensees shall not broadcast or televise matter which is, amongst other things, blasphemous.7
3.13 There are, however, no references to blasphemy or any related religious offences in the Crimes Act 1914 (Cth). The former offence of sending blasphemous material through the post was abolished in 1989 and replaced with the offence of using the 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.8
3.14 The Australian Law Reform Commission has recently recommended the removal of all references to blasphemy in federal legislation.9 The Commission did not favour extending the law to cover faiths other than Christianity, considering that it would be very difficult to devise a satisfactory definition of religion and that such a course would unreasonably interfere with freedom of speech.
THE LAW IN OTHER JURISDICTIONS
Scotland
3.15 Blasphemy, defined as the uttering of profanities against God or the Holy Scriptures in a scoffing manner out of a reproachful disposition rather than with the purpose of propagating the irreverent opinion, is a common law offence under Scottish law. However, due to disuse, many commentators question its continued existence.10
Ireland
3.16 Article 40.6.1.i of the Constitution of Ireland provides that the publication of blasphemous matter is an offence. Although opinion is divided over the current state of the common law in Ireland, particularly the effect of the decision of the House of Lords in Bowman v Secular Society,11 in DP 24 the Commission preferred the view that all decisions of the House of Lords form part of the law of Ireland and that therefore blasphemy in Ireland exists in similar terms to that of the law of England, although it operates by reference to the Catholic Church.
3.17 It should also be noted that the Prohibition of Incitement to Hatred Act 1989 prevents the publication of material designed to stir up “hatred”. This includes hatred against a group on account of their religion.
3.18 The Law Reform Commission of Ireland, being of the view that “there is no place for the offence of blasphemous libel in a society which respects freedom of speech”, but recognising that blasphemy could not be abolished without a referendum to amend the Constitution,12 recently recommended the creation of a new statutory offence of blasphemous libel. The offence would cover matter “the sole effect of which is likely to cause outrage to a substantial number of adherents concerning a matter or matters held sacred by that religion” and would extend to other religions.13
Canada
3.19 Section 296 of the Canadian Criminal Code is in similar terms to s 119 of the Tasmanian Criminal Code, although the consent of the Attorney-General is not required in order to commence a prosecution. The case law on the provision is contradictory, rendering uncertain the precise elements of the offence. For example, it is unclear whether only a direct attack on the deity will constitute the offence14 or whether the offence is not so confined.15 It is reasonably clear that the offence extends to the Christian religion generally,16 although not beyond it.17
3.20 In addition, the “hate propaganda” provisions of the Criminal Code18 create offences of public incitement of and wilful promotion of hatred against an identifiable group. “Identifiable group” is widely defined to include a religion.
3.21 The Canadian Law Reform Commission’s report relating to the recodification of the Criminal Code19 omitted any reference to blasphemous libel. Thus, by implication, it recommended the abolition of the offence.
New Zealand
3.22 Section 123 of the New Zealand Crimes Act 1961 is in similar terms to section 119 of the Tasmanian Criminal Code except that the offence carries a maximum of one year’s imprisonment. The last reported prosecution under the section was in 1922.20
United States of America
3.23 In the earlier United States cases the offence of blasphemy consisted of malicious speech against the Christian religion.21 However it seems that it is now regarded as a crime because of its tendency toward breaching the peace, rather than its violation of religious tenets.22
3.24 However any blasphemy prosecution may well fall foul of the guarantees in the United States Constitution of freedom of speech, religious liberty and worship and against the establishment of any state religion.23 In a landmark 1970 case, the Maryland Supreme Court held a blasphemy statute unconstitutional for violation of freedom of speech under the First Amendment.24 It would only be upheld if it could be shown that a compelling need existed which substantially outweighed these freedoms. There have been no blasphemy prosecutions in the United States in modern times.25
Papua New Guinea
3.25 The Papua New Guinean Criminal Code is based substantially on the Queensland Criminal Code and, as with that Code, the omission of blasphemy was tantamount to abolition. Sections 207-208 create offences of violence to ministers of religion and disturbing religious worship. Although the Papua New Guinean Constitution allows the Courts to fashion an “underlying law”, that is, a Papua New Guinean common law, this does not extend to criminal laws, which s 37(2) of the Constitution provides must be prescribed in writing.
Nauru
3.26 The position in the Republic of Nauru is still governed by the Queensland Criminal Code and consequently the position is the same as in Queensland.
India
3.27 Section 298 of the Indian Penal Code 1860 (based on the draft of Lord Macaulay) makes the deliberate intentional wounding of religious feelings by word or gesture an offence.26 Section 295A makes the deliberate intentional and malicious outraging of religious feelings of any class of citizens by either the spoken or written word an offence. These offences are wider than the common law in that they protect the religious feelings of any person or class of citizens in India.27
Fiji
3.28 The Fijian Penal Code is closely based on the Indian Penal Code and s 148 is in identical terms to s 298 of the latter Code with a one year maximum term of imprisonment. In addition there are offences of damaging, destroying or defiling a place of worship, disturbing a religious assembly and trespass to burial places.28 As in India, the offences are not limited to the protection of the Christian religion.
The Solomon Islands
3.29 Sections 123-5 and 127 of the Solomon Islands Penal Code are in identical terms to the above mentioned offences in the Fijian Penal Code.
Vanuatu
3.30 The Vanuatu Penal Code was loosely based on the Indian Penal Code but was substantially revised in 1981 following independence. Sections 88-89 provide for offences of damaging or defiling a place of worship and disturbing religious worship but there is no longer an offence of blasphemy or wounding religious feelings.
Western Samoa
3.31 Section 42 of the Western Samoan Crimes Act 1961 is in identical terms to s 123 of the New Zealand Crimes Act 1961 and in similar terms to s 119 of the Tasmanian Criminal Code. The maximum penalty is imprisonment for a term of one year.
South Africa
3.32 Blasphemy is a common law crime in South Africa. While its scope is uncertain, recent authorities suggest that it should be restrictively interpreted and applied.29 The last reported prosecution was in 1934.30 In addition, the Publications Act 1974 prohibits the publication and distribution of blasphemous material.
Indonesia
3.33 Section 156(a) of the Criminal Code forbids conduct which affronts a recognised religion (that is, Islam, Buddhism, Hinduism, Catholicism or Protestantism). In addition, s 19 of the Main Press Ordinance 1982 forbids the publication of blasphemous material. In a recent prosecution of a newspaper and its editor for publishing a poll in which the top ten most admired persons nominated by readers did not include the Prophet Mohammed, the published material was found to breach both sections. The court ruled that the Code did not require the use of insulting language and that intention to do the offensive act was sufficient, without intention to offend.31 In the result the editor was sentenced to five years imprisonment and a A$5000 fine.
OVERVIEW
3.34 The legal systems of Victoria, the Australian Capital Territory, South Australia, Scotland and South Africa may have retained a common law offence of blasphemy in the absence of any legislative or judicial abrogation, although there is a question whether the offence may have lapsed through disuse. Commentators in these jurisdictions generally regard blasphemy as an anachronism.
3.35 In the Queensland Criminal Code and its regional derivatives in Western Australia, the Northern Territory, Papua New Guinea and Nauru, blasphemy was effectively abolished by the move to codification and the decision by Sir Samuel Griffith not to include blasphemy among the comprehensive list of major crimes in 1897.
3.36 The criminal laws of Tasmania, Canada, New Zealand and Western Samoa all contain a (virtually identical) statutory reference to blasphemy, limited by the “good faith” exception. The provisions in Tasmania, New Zealand and Western Samoa require the consent of the Attorney-General before any proceedings are launched. The maximum penalty is one year’s imprisonment in New Zealand and Western Samoa, two years in Canada, and (by default) 21 years in Tasmania.
3.37 The Irish Constitution entrenches the offence of blasphemy in Irish law, together with other aspects of the established (Roman Catholic) church.
3.38 The Indian Penal Code and its regional derivatives in Fiji and the Solomon Islands all contain offences analogous to blasphemy. However, it is worth noting that:
- these Codes were drafted well over a century ago, having regard to the state of the English common law at that time;
- the offences were meant to operate in the diverse, multicultural context of colonial India and were not limited to the protection of only an established Christian religion or particular denomination;
- the offences require a subjective element of intention; and
- the offences were oriented more in nature and penalty to modern public order offences than to ancient ecclesiastical law - a maximum penalty of one year’s imprisonment is prescribed.
3.38 In Vanuatu, where the adopted Penal Code was subjected to a thorough post-Independence review in 1981, the blasphemy offence was dropped.
3.39 All of the law reform commission inquiries into the law of blasphemy in recent times - in South Australia, England and Wales, Ireland (notwithstanding the need for a Constitutional referendum) and the Australian Law Reform Commission - have recommended abolition.
Conclusion
3.40 In conclusion, while a significant number of the jurisdictions surveyed retain an offence of blasphemy (or blasphemous libel), prosecutions in this century have been very rare. The continued existence of the offence may owe more to inertia in the absence of controversy, than to conscious policy decisions. Even where incidents arise which may raise issues of blasphemy, it is clear that in modern times the preferred course of action for prosecuting authorities is to utilise other offences, such as obscenity, indecency, or public order offences. This would be reinforced by the requirement in several of the jurisdictions that the consent of the Attorney-General is required before proceeding with a charge. It is notable that the House of Lords considered this area of the law in 1979 only after a private prosecution was commenced by Mrs Mary Whitehouse against some publishers for blasphemous libel,32 30 years after Lord Denning pronounced the offence “a dead letter” in England.33
FOOTNOTES
1. Explanatory letter dated 29 October 1897 from Sir Samuel Griffith to the Attorney-General. Quoted in RF Carter Criminal Law of Queensland (6th ed, Butterworths, Sydney 1982) at 4. Note that Griffith included a section in his Draft Code (s 213) creating a misdemeanour punishable by imprisonment for one year for holding up the doctrines of any religious faith to derision or contempt. This section did not form part of the Code as enacted: see R O’Regan “Two Curiosities of Sir Samuel Griffith’s Criminal Code” (1992) 16 Criminal Law Journal 209.
2. Criminal Code Act 1899 (Qld), s 3.
3. According to which no person is liable to be tried for an indictable offence except under the express provisions of the Code.
4. See account by P Coleman Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia (2nd ed, Angus & Robertson, Sydney, 1974) at 66ff.
5. South Australia. Criminal Law and Penal Methods Reform Committee of South Australia. Fourth Report: The Substantive Criminal Law, 1977 at 248.
6. There is no “exclusive jurisdiction” provision analogous to s 5 of the Queensland Code.
7. The term is not defined in the legislation but the Australian Broadcasting Tribunal has adopted the common law definition in its policy statement, Blasphemous, Indecent or Obscene Matter (POS 03, 17 October 1983).
8. Crimes Act 1914 (Cth), s 85S.
9. Australia. Law Reform Commission Multiculturalism and the Law (Report 57, 1992) at para 7.59.
10. JHA MacDonald Criminal Law of Scotland (5th edition, Green, Edingburgh, 1948) at 153; GH Gordon Criminal Law (2nd ed, Green [for] the Scottish Universities Law Institute, Edinburgh, 1978) at 998; G Maher “Blasphemy in Scots Law” [1977] Scots LT 257 at 260.
11. [1917] AC 407.
12. A referendum with the sole aim of amending the blasphemy provision was considered to be time wasting and expensive but the Commission thought that in any more extensive review of anachronistic Constitutional provisions, the opportunity should be taken to delete the blasphemy provision.
13. Ireland. Law Reform Commission The Crime of Libel (Consultation Paper, August 1991).
14. See R v Kinler (1925) 63 Que SC 483.
15. See R v Martin (1933) 41 R de Jur 411.
16. See R v Rahard [1936] 3 DLR 230.
17. England and Wales. Law Commission Offences Against Religion and Public Worship (WP 79, 1981) at para 4.7.
18. Section 319.
19. Canada. Law Reform Commission Recodifying Criminal Law (Report 31, 1987).
20. R v Glover [1922] GLR 125.
21. C E Torcia (ed) Wharton’s Criminal Law (Volume 4, 14th ed, The Lawyers Co-operative Publishing Company / Bancroft-Whitney Co, New York, 1981) at 196.
22.. Torcia at 196.
23.. See further R C Post, “Cultural heterogeneity and the law: pornography, blasphemy, and the First Amendment” (1988) 76 California Law Review 297.
24.. Maryland v West (1970) 9 Md App 270. R Mortensen, however, doubts the justification for the decision: “Blasphemy in a Secular State: a Pardonable Sin?” (1994) 17 UNSWLJ 409 at 422.
25. There have been recent moves in some states to abolish archaic and rarely used blasphemy laws dating back to the late seventeenth century, see report in Daily Telegraph Mirror, 9 June 1992, at 11 concerning a Massachusetts law. For a very detailed history of blasphemy in the US see L Levy, Blasphemy: Verbal Offence against the Sacred, from Moses to Salman Rushdie (Alfred A Knopf, New York, 1993), especially chapters 24 and 25.
26. O’Regan notes the similarity of s 298 to the proposed s 213 in the Queensland Draft Code and suggests that Griffith must have been aware of the Indian provision: R O’Regan “Two Curiosities of Sir Samuel Griffith’s Criminal Code” (1992) 16 Criminal Law Journal 209 at 213.
27. For a comparative approach to Indian and UK law see F S Nariman, “Freedom of speech and blasphemy: the laws in India and UK” (1989) 42 International Commission of Jurists Review 53.
28. Sections 145-147.
29. WA Joubert The Law of South Africa (Butterworths, Durban, 1981) vol 6, para 249.
30. R v Webb 1934 AD 493 at 497; see Publication Control Board v Gallo (Africa) Ltd 1975 (3) SA 665.
31. The “Monitor Blasphemy Case”. Details taken from K Henderson “Blasphemy in a Pluralistic Society” (1992) 11 Communications Law Bulletin 26.
32. Previously, the UK Home Secretary had declined to prosecute for blasphemy three men dressing as priests accompanying their victorious soccer team and carrying placards reading ‘They Shall Reign Forever’, ‘Hallowed be Their Names’ and ‘Adore Them for They are Glorious’: M Armstrong, M Blakeney and R Watterson, Media Law in Australia: A Manual (2nd edition, OUP, Melbourne, 1988) at 146. Counsel for the defendants in R v Lemon frankly admitted before the Court of Appeal that the material in dispute may well have led to a successful prosecution under the Obscene Publications Act 1959 (UK). The choice of prosecuting the publishers for blasphemy appears to have been made after a copy of the offending poem was sent to Mrs Whitehouse by a supporter just as she was thinking of trying the law of blasphemy as a new weapon in her campaigns: M Tracey and D Morrison, Whitehouse (Macmillan, London, 1979) at 114.
33. Lord Denning, Freedom Under the Law (Hamlyn Lectures, 1st series, Stevens, London, 1949) at 46.
