SUBMISSIONS AND COMMUNITY DEBATE FOLLOWING DP 24
4.1 The release of DP 24 received significant media attention in NSW and interstate. Articles appeared in all the major press outlets; the release was featured on all but one of the television network news programs, the issues were canvassed on ABC Television’s religious affairs program “Compass”, and the Commission was involved in numerous radio interviews. A significant amount of community discussion also occurred in the letters columns of the newspapers and on “talk-back” radio. For example, the Commission was provided with a tape of a talkback segment on blasphemy from ABC Radio 2 JJJ (the National Youth Network) which consisted of sixteen calls.1
4.2 The Commission received a total of sixty-one written submissions. Over half (approximately 60%) were from private individuals or families or from individual religious leaders, such as Cardinal Edward Clancy, the Catholic Archbishop of Sydney and Rabbi Raymond Apple of the orthodox Jewish community. Keith Mason QC (Solicitor General of New South Wales, writing in his personal capacity), and George Zdenkowski of the University of New South Wales Faculty of Law (a former Australian Law Reform Commissioner) also made submissions. The remaining submissions were on behalf of groups or organisations, including religious bodies, the Law Society of New South Wales, the New South Wales Bar Association, the Ethnic Affairs Commission of New South Wales, the Australian Journalists Association, the Australian Press Council, the Buddha-Dhamma Foundation, the Free Speech Committee, the New South Wales Humanist Society, the New South Wales Council for Civil Liberties, the Probation and Parole Officer’s Association of New South Wales and the Rationalist Association of New South Wales.
4.3 DP 24 outlined four options for reform. Most of the submissions favoured the more absolute options of either maintenance of the existing offence of blasphemy or outright abolition (that is, Options One and Four respectively), while a smaller number favoured either progressive codification or selective replacement (Options Two and Three).
OPTION ONE: RETENTION OF THE COMMON LAW
4.4 The first option was simply to retain the law of blasphemy in its existing (mixed common law and statutory) form.
Submissions in support of Option One
4.5 The Commission received twenty-six submissions in favour of the retention of the offence of blasphemy, twenty-one from private individuals or families and five from Churches or Church groups.
4.6 The submissions in this category tended to be statements of the authors’ personal convictions, and the expression of fears that the abolition of the offence of blasphemy would serve to encourage outrageous and anti-religious conduct. The Commission appreciates the time and trouble taken by the authors to apprise us of their views. However, very few of the submissions sought to address the many specific difficulties presented by the offence which were emphasised in DP 24, such as the problems of definition, application and procedure. (It is interesting to note that this Commission’s experience is similar to that of the Law Commission of England and Wales in the preparation of its 1985 Report on blasphemy and other offences against religion and religious worship2.) The issues raised by the submissions in support of Option One are summarised immediately below.
Protection of God and of individual feelings
4.7 The major concern emerging from the submissions was that the abolition of blasphemy would lead to an increase in offensive behaviour directed at Christians and Christianity, and would provide, in effect, a “licence to profane the sacred”.3 One submission suggested that while God was “quite able to defend Himself”, blasphemy still amounted to an improper rejection of God.4
Protection of morality and society
4.8 It is clear that for those who support the retention of the crime of blasphemy, the offence has important symbolic value, constituting a statement about the respect for religion and the morality derived from religious belief in our society. Thus, the abolition of blasphemy could be seen as an attack on morality, “Christian ethics” or “traditional values”.5 Indeed, one submission thought that DP 24:
makes the fatal error of treating blasphemy as a social matter rather than a moral issue. A moral issue such as blasphemy involves questions of good and evil, right or wrong, and can only be determined by obedience to injunctions contained in God’s Holy Word, not by the changing concepts of present day popular thinking ... . [A]ccording to Scripture, blasphemy has been, is and always will be sin.6
4.9 The members of the Hurstville Baptist Church submitted, through one of its deacons, that:
the dishonouring of God in our community surely weakens respect for moral law and codes which are the foundation of our society. The repeal of the laws concerned will be very detrimental to the well being of our community.7
4.10 Another submission put this argument in similar terms, stating that:
any action, no matter how seemingly insignificant, that diminishes respect for and fear of God or detracts from adherence to the Christian principles which are part of our heritage as a Nation, will ultimately have adverse repercussions within our community.8
4.11 One submission considered that abolition would be the “thin edge of the wedge”, opening the way for further moral decline.9 In a similar vein, a number of the submissions were concerned about what might subsequently occur in the daily mass media and in films, doubting the ability of the media to act responsibly without the (assumed) restraining effect of the law of blasphemy.10
The infrequency of prosecutions
4.12 Some proponents of retention said that the absence of any actual prosecutions for blasphemy in New South Wales for over 120 years should not of itself be used as a ground for abolition.11 One submission stressed the deterrent effect of law.12 Another was concerned about what might happen in the future, arguing that regardless of the feeling of the moment, it was clear that:
just as the environmental issues have shown ... people have not thought ahead to the enormity of the impact that their decisions and actions would bring. I think this amendment stands on the same ground. Years ahead we would see, if this amendment were to go ahead, that it would have opened the door to corruption that we don’t as yet see.13
Extension to other religions
4.13 Support was voiced for Option One by the Presbyterian Church of Australia in the State of New South Wales, which made submissions through its Standing Committee (of the General Assembly) on Church and Nation,14 and through its Law Agent and Procurator.15
4.14 In the latter submission, it was said that, by reference to the 1986 Census figures:
the great majority of the Australian (and New South Wales) population adhere, at least nominally, to the Christian religion ... There is no basis upon which the State could form the view that this body would wish to lose the protection now afforded by the law of blasphemy. Indeed there is no reason to think that non-Christians would want Christians to cease to have available this protection.
We regard it as appropriate that the legal system of New South Wales should continue to reflect its historic protection of Christian religious beliefs so as to protect public order. Legal protection of non-Christian religious beliefs may be considered if sufficient community interest supports such action, but any such legal protection should be contained in a separate enactment and should be linked to protection of public order.16
4.15 Another submission suggested that the ostensible discrimination in blasphemy was remedied by other laws of more general application:
[T]his society requires for its own ultimate integrity and security the continuation of the law of blasphemy against the Christian Lord, while it grants protection for the integrity and security of other belief systems through such methods as proposed under the Anti-Discrimination Act 1977.17
4.16 There were also a number of submissions which suggested that the legal system of New South Wales should properly continue to reflect its historic protection of Christianity.18
The Commission’s evaluation of the policy arguments
4.17 Protection of God and religion. Blasphemy has its origins in ecclesiastical law, together with the other related religious offences of heresy, schism and atheism.19 However, the secularising trend in blasphemy law has clearly shifted the concern from the protection of religion to the protection of the established social and political order. If religious protection is considered to be the primary aim of the offence, it is anomalous that only scurrilous attacks are penalised while well reasoned, intellectual debate is not, though such debate may be far more effective in destroying religious belief.20
4.18 The Commission recognises the natural wishes of people to protect objects of their veneration, but recourse to the criminal law may be entirely inappropriate for that purpose, particularly in a context where only one religion receives the benefits of the protection.
4.19 As regards the discriminatory nature of the current blasphemy law, in the modern plural society that Australia has become, this inherited discrimination is hard to defend, given that it is contrary to contemporary morality, many judicial pronouncements, and expressed State and federal policies.21
4.20 Most of the submissions, including those which advocated retention of the offence, recognised that the underlying basis of blasphemy law had changed from the protection of religion to the protection of social order and/or the protection of adherents from an offence to their sensibilities.
4.21 Protection of society. The English common law crime of blasphemy (as opposed to the ecclesiastical offence) emerged during the Restoration, a period marked by social turbulence and a strong alliance between the Church and the State. Blasphemy and sedition were seen as closely related, and criticism of the Church was seen as an attack on the very structure of society itself.
4.22 This is no longer a genuine perception - the Commission doubts whether the offence of blasphemy has any existing deterrent effect, given that the offence is so obscure, prosecutions are so rare, and the penalty largely unknown. There has only been one prosecution for blasphemy in New South Wales in the last 120 years - the outcry resulting from the penalty imposed upon the convicted blasphemer caused far more civil unrest than the material which the prosecution was intended to suppress.22 As discussed in DP 24,23 wider knowledge of the offence could actually encourage some to do those acts which the law seeks to proscribe: many authors and publishers have in the past relished their “martyrdom” at the hands of a legal instrument of suppression. In some cases, the public exposure resulting from the prosecution increases the profit and notoriety accruing to the blasphemer; this is one example of the sacred maxim in the advertising industry that “there is no such thing as bad publicity.” Indeed, a prosecution for blasphemy may lead to more commercially calculated law-breaking. Shortly after the trial of Lemon,24 for example, an illustrated book of “blasphemous” verse was published, entitled Good God. It is worth recalling the comment of Lord Sumner in Bowman v Secular Society that “most men have thought that such writings are better punished with indifference than with imprisonment”.25 The actual sentences imposed for blasphemy in recent times probably would not dissuade anyone from breaching the law for principle or profit. The defendants in Whitehouse v Lemon,26 for example, ultimately only received fines.
4.23 Blasphemy has no significant utility as a means of promoting religious tolerance. The history and development of the law of blasphemy indicates that the criminal law and its sanctions were used to enforce the pre-eminence of one religion over all others. While recognising the socially divisive and destructive effect of religious and racial conflict, the Commission has grave doubts as to the remedial possibilities of the criminal law and considers that modern anti-discrimination legislation is a superior vehicle to promote religious freedom and social tolerance, and to remedy conflict based on social difference. It would be perverse indeed if concepts of pluralism and multiculturalism were used to justify the retention and significant expansion of a criminal offence which was developed precisely to enforce the maintenance of a single set of established beliefs by severely punishing expressions of dissent.
4.24 Protection of individual feelings. The retention of the offence of blasphemy has been said to be justified on the basis that criminal liability is appropriate when individuals with deeply held religious convictions are caused grave offence by truly scurrilous expressions.27
4.25 The Commission has no doubt that there are many members of the community who have such deeply held religious convictions and that these views should be respected. It is less clear that religious views merit the special attention of the criminal law, as opposed to, say, political or humanist or aesthetic beliefs.28
4.26 Apart from the fact that the offence would currently “protect” only Christians, it is also open to question whether the criminal law of blasphemy is capable of adequately educating the community to respect the beliefs of others and to promote tolerance for such beliefs, or to deter wilful breaches.
4.27 Further, the Commission accepts the principle that freedom of speech should be curtailed only where a compelling countervailing right demands priority.29 The protection of private feelings in this area may not be considered sufficiently compelling,30 and the protection of public order is better accomplished by other means (see below).
4.28 Protection of public order. In order to justify the retention of blasphemy on the basis that it protects public order, it is necessary to show that publication does in fact disrupt public order and that the offence is the appropriate mechanism to control this conduct.
4.29 There are several existing “public order” criminal offences in New South Wales which could cover the same ground as blasphemy. Some of these already have a religious context. Sections 56, 106 and 107 of the Crimes Act 1900 (NSW) deal with obstructing members of the clergy in the exercise of their duties and with “sacrilege”; s 39 of the Imperial Acts Application Act 1969 (NSW) creates a statutory offence of disturbing a meeting for religious worship and the common law misdemeanour protecting lawful religious worship against disruption. General criminal offences which may be relevant include provisions relating to offensive conduct in section 4 of the Summary Offences Act 1988 (NSW), and section 4 of the Inclosed Lands Protection Act 1901 (NSW), which operate to prevent or to punish the gratuitous wounding of an individual’s feelings. The common law misdemeanour of incitement to commit a criminal offence would also cover some similar ground to that covered by blasphemy, where there was an exhortation to harm a person or class of persons (or their property) based on those persons’ religious beliefs.
4.30 Finally, the racial vilification provisions of the Anti-Discrimination Act 1977 (NSW)31 may be applicable. The provisions have been amended by the Anti-Discrimination (Amendment) Act 1994 (NSW), which explicitly includes “ethno-religion” as an aspect of “race” for the purposes of the racial vilification and racial discrimination provisions of the Anti-Discrimination Act. The amendment clarifies some previous case law to the effect that certain ethno-religious groups fall within the definition of “race” for the purpose of racial discrimination legislation. For instance, in King-Ansell v Police,32 the New Zealand Court of Appeal held that Jews in New Zealand formed a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ). The New Zealand decision was discussed with approval in the English case of Mandla v Dowell Lee,33 in which the House of Lords held that Sikhs constituted an “ethnic” group for the purposes of the Race Relations Act 1976 (UK).
4.31 The Commission believes that these provisions in the Anti-Discrimination Act are better designed to preserve public order and social cohesion in a modern democratic society, given several important considerations: the emphasis on education and conciliation in the first instance; the clarity of the elements of the offences, and the protection of debate or discussion carried out in good faith; the more realistic penalties; and the requirement of the consent of the Attorney General before criminal proceedings may be instituted.34
Summary
4.32 There are both legal and policy concerns with preserving the existing common law offence of blasphemy.
4.33 Public order is clearly capable of being preserved in New South Wales without the offence of blasphemy, which has not been utilised this century. The general criminal law, including offences relating to incitement and offensive behaviour, covers this area adequately. Further, it is inappropriate for the criminal law to be used to protect an individual’s religious convictions in a secular society, particularly where the adherents of only one faith are protected. The offence curtails freedom of speech, without a sufficiently compelling countervailing right. Whether the offence is capable of adequately educating the community to respect the beliefs of others must be questioned. Finally, it is unclear why religious beliefs merit special protection whereas other beliefs do not.
4.34 In addition to the policy concerns with the offence of blasphemy, there are problems with the particular offence of blasphemy which is made part of the law of this state by s 574 of the Crimes Act 1900 (NSW) and the operation of the common law.35 In particular:
- there is considerable uncertainty about the elements (and indeed the very existence) of the offence;
- the scope of the existing offence is limited to attacks on the Church of England and related Christian denominations;
- as a common law offence, blasphemy would have to be tried upon indictment in a superior court, with a judge and jury; and
- as a common law offence, sentencing is “at large” - that is, without any statutory limits or guidance.
4.35 The Commission considers this Option to be unattractive, given the problems identified above. Public order clearly could be maintained (and has been maintained) without resort to the law of blasphemy. The general criminal law covers this area adequately. In a multicultural, pluralistic society, a law which provides discriminatory protection to a particular religion cannot be justified.
OPTION TWO: PROGRESSIVE CODIFICATION OF THE OFFENCE OF BLASPHEMY
4.36 The second option is to codify the ancient offence in such a way as to meet the various objections mentioned above and produce a suitably redefined modern offence.
4.37 In DP 24, the Commission considered that the following should be contained in any new offence:
a. Subjective fault. A codified offence should incorporate a concept of subjective fault. As noted in Chapter 2, para 2.25, the Commission’s view is that the proper construction of the offence would require the prosecution to prove, beyond reasonable doubt, that the accused not only intended to publish the material in question, but also that he or she intended to cause such grave offence that a breach of the peace was a real possibility.36
b. The protection of bona fide debate. Any codified offence would require a provision making it clear that publications made for the purposes of bona fide discussion or debate would not attract criminal liability. The onus should lie on the Crown affirmatively to disprove (or negative) this element.
c. Clarification of the “breach of the peace” requirement. Since the essence of the offence of blasphemy is its potential to harm the very fabric of society, a codified offence should require the prosecution to prove that the accused intended to foment general public disorder or was aware that such disorder was likely - the less inclusive formulation of Lord Sumner in Bowman v Secular Society37 is preferable to that of Lord Parker in the same case.
d. Extension to other religions. Any attempt to codify the offence of blasphemy would need to remedy its discriminatory application.38 However, this is more easily stated than achieved. The main problem lies in defining precisely what would constitute a religion for the purposes of the offence. A narrow definition would deny coverage to some bona fide religious groups which are new or outside the mainstream, while an overly broad definition could encourage the contrivance of religious status to attract the protection of the offence, and result in an unjustifiable impingement upon free speech. Various solutions, including a single definition to be applied by the courts on a case-by-case basis, definition by reference to other legal criteria (such as the law of charitable trusts) or a comprehensive list of religions were considered by the Commission in DP 24.
e. Sentencing and procedure. If blasphemy is retained as an offence, a maximum penalty should be fixed. In light of the penalties for the offence in other jurisdictions, and for similar public order offences in New South Wales, a maximum of one year’s imprisonment would be the most that could be justified. The approval of the Attorney General or the Director of Public Prosecutions should be necessary to commence proceedings for blasphemy, as is the case in some other jurisdictions, in order to prevent frivolous or vexatious prosecutions. The offence should remain an indictable one, so that it would be the role of the jury (or the judge alone if an accused person has so elected) to determine questions of fact with regard to prevailing community mores, attitudes and sensibilities.
Submissions in support of Option Two
4.38 The Commission received six submissions in support of Option Two, advocating “progressive codification” of blasphemy law. With one exception,39 the submissions in this category focussed almost exclusively on the need to extend the protection of the law to other religions. Unfortunately, the issues raised for discussion by the Commission in DP 24 concerning the mens rea of the offence, the “bona fide debate” exception, the clarification of the breach of the peace requirement, and matters of sentencing and procedure were not addressed to any significant extent.
Mens rea, bona fide debate, breach of peace, sentencing and procedure
4.39 The New South Wales Council of Churches40 made detailed submissions about a new codified offence. As a basis for discussion, the Council cited figures on religious affiliation from the 1986 national Census and submitted that:
retaining the offence of blasphemy is clearly not an anachronism, but a reasonable response to the needs of at least 80% of the population of NSW [which identified themselves as Christians].
4.40 The Council of Churches made a number of specific points about the way the law should develop. Firstly, the Council submitted that the Commission’s concerns about the continued existence and the scope of the offence were exaggerated. Secondly, it submitted that the mens rea for the offence should be the one expressed by the House of Lords in Whitehouse v Lemon - that is, the basic intention to publish the material in question (and not the further intention to cause offence). Thirdly, the Council of Churches submitted that any newly codified offence of blasphemy should make it clear that bona fide debate about religious matters was excluded from criminal liability, although the Council felt that this already was implicitly part of the existing offence. Fourthly, the Council recommended removing the requirement to prove a tendency to cause a breach of the peace. This was because it was considered that the essence of the offence was injury to religious sensibilities.41 Fifthly, the Council supported the need for the prior approval of the Attorney General or the Director of Public Prosecutions to prosecute anyone for blasphemy, and supported the specification of a maximum penalty for the offence. Sixthly, the Council suggested that a new blasphemy law should contain a provision similar to that in the racial vilification provisions of the Anti-Discrimination Act 1977 (NSW), enabling a court or specialist tribunal to hold an inquiry into blasphemy complaints before criminal charges could be laid. Finally, the Council of Churches submitted that:
as the word “blasphemy” may be misunderstood or misconstrued, it may be appropriate to rename the new blasphemy offence as “religious vilification” or “religious defamation”.
The extension to other religions
4.41 The primary concern of the submission of the Islamic Council of New South Wales was that:
The existing law is an inheritance of English Common Law and, as it stands, openly presumes and affirms the mono-cultural matrix of English society and the specific relationship between the Anglican Church and Britain, which does not apply in Australia. In so far as this goes, the law of blasphemy is incompatible with a multicultural, cosmopolitan and multi-faith New South Wales.
4.42 The Islamic Council submitted that blasphemy is not an archaic offence, but rather would have clear relevance to a contemporary multicultural society if it could be made to operate in a non-discriminatory fashion. The Islamic Council concluded, therefore, that the offence of blasphemy should be extended to other religions.42
4.43 A number of submissions dealt with the problems of defining “religion” for the purposes of extending the scope of blasphemy law. One submission suggested that:
one must be careful not to overstate these difficulties. An all-encompassing definition is not necessary. The Courts would be quite capable of receiving and assessing evidence about the existence of a religious tradition and its beliefs and practices.43
4.44 Another submission suggested that the offence could be extended to protect blasphemy “concerning the Supreme Deity common to all the major religions”, and that where the faith claiming protection “is obscure, perhaps the informant should be obliged to prove a number of tenets of the faith as adhered to by a significant number of believers, which are offended by the blasphemy alleged”.44 It was also submitted45 that the definition adopted by the High Court in The Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)46 might be an appropriate one. Finally, one response to those concerned about the difficulties of definition was that “where there is a will, there is surely a way. Where there is no will, there are always excuses”.47
The Commission’s view
4.45 While Option Two attempts to address the legal concerns with the existing offence of blasphemy, many of the policy concerns expressed in relation to Option One apply equally here.48
4.46 Further, the problems associated with defining “religion” are not easily solved. While the NSW Council of Churches submitted that the “definition” adopted by the High Court in The Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)49 might be appropriate, a definitive test was not propounded by a majority of the Court. Mason CJ and Brennan J took the view that for the purposes of the law, the criteria are twofold: belief in a supernatural being, thing or principle along with the acceptance of canons of conduct in order to give effect to that belief. Canons of conduct which offend against ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Wilson and Deane JJ were of the view that there is no single characteristic that could constitute a formalised legal criterion for whether a particular system of ideas and practices constitutes a religion. In their Honours’ view, all that can be done is to formulate indicia by reference to which the question is to be decided - they identified five indicia. Murphy J also did not propound a definite “test”, but rejected the first criterion of Mason CJ and Brennan J as no longer essential to a definition of religion.
4.47 These judgments have been criticised for their minimisation of the subjective factor in the nature of religion.50 They illustrate how the courts have not been at ease when faced with the issue of whether a particular set of beliefs constitutes a religion. In response to the argument that “where there is a will there is a way”, the Commission really does not have the will to proceed along this path. The Commission is inclined to agree with the conclusion of the Law Commission of England and Wales51 that it is impossible to define “religion” satisfactorily, and that this alone is sufficient reason to abandon the offence of blasphemy.
OPTION THREE: POSSIBLE REPLACEMENT OFFENCE(S)
4.48 The third option is the possibility of creating a new offence (or offences) to replace blasphemy, which would be less objectionable on legal and policy grounds. Two main types of replacement offences were considered.
4.49 Insulting or outraging religious feelings. The emphasis of contemporary applications of the offence of blasphemy appears to be on the protection of religious sensibilities from scurrilous and gratuitous attack. This protection could be retained by criminalising behaviour which is offensive to the religious sensibilities of others. Similar offences exist in other jurisdictions such as s 298 of the Indian Penal Code.52
4.50 Incitement of hatred or violence on religious grounds. The Commission considers that the creation of an offence which would prohibit the incitement of hatred on the basis of religious beliefs would combine the notion that blasphemy exists to prohibit breaches of the peace with the right of an individual not to be exposed to hatred and violence. This is achieved to some extent by Division 3A of the Anti-Discrimination Act 1977 (NSW). Since 1989, it has been unlawful to incite racial hatred in New South Wales53, with incitement to racial violence being a criminal offence.54 ‘Race’ is defined to include ethno-religious origin.55 Section 319 of the Canadian Criminal Code goes further by making incitement to racial hatred (rather than racial violence) an offence.
4.51 At the Commonwealth level three reports have recommended the need for racial vilification legislation (the Report of the National Inquiry into Racist Violence (NIRV)56, the Royal Commission into Aboriginal Deaths in Custody: National Report57 and the ALRC Report on Multiculturalism and the Law58), although there is some disparity on matters of detail such as the precise nature of the offences.
4.52 The Commonwealth is yet to pass racial vilification legislation. The Racial Discrimination Amendment Bill 1992 (Cth) was introduced into the federal Parliament on 16 December 1992. At the time, the Government did not have a final position on the Bill and proposed to let it lie in order to encourage all interested parties to comment on the legislation. The Bill lapsed on the proroguing of Parliament before the March 1993 federal election.
4.53 There is a draft Bill in circulation at present,59 which proposes to make racial vilification unlawful (by amending the Racial Discrimination Act 1975 (Cth) to add racial vilification as a ground upon which a person can bring a complaint to the Human Rights and Equal Opportunity Commission60), and to amend the Crimes Act 1914 (Cth) to create an offence of racial incitement. The Attorney General is considering the proposed legislation in light of comments received during consultations with the community. The date for reintroduction of the legislation has yet to be determined.61
Submissions in support of Option Three
4.54 Several submissions were received in support of Option Three, for the replacement of blasphemy with other suitable offences.
4.55 The Uniting Church in Australia’s Board for Social Responsibility (in a submission made primarily in the context of federal law reform), was of the opinion that blasphemy was not an appropriate subject for treatment by the criminal law and that it should be replaced with provisions criminalising incitement to violence on the grounds of (among other things) religion. The Board did not, however, support the creation of an offence of incitement to hatred (as opposed to violence) because it considered that such an offence could constitute an unreasonable limitation on freedom of speech.62
4.56 The Anglican Church of Australia, Diocese of Sydney, submitted that it would not be greatly concerned with the abolition of the offence of blasphemy, as long as there was adequate legislation dealing with offensive behaviour.63
4.57 The submission of the National Spiritual Assembly of the Baha’is stressed the importance of freedom of speech and welcomed public scrutiny of the tenets and practices of their religion. However the Assembly felt that there was a need for protection from ridicule and vilification and suggested that this could best be achieved by the replacement offences suggested in Option Three.64 The Baha’is considered that it would be equitable to extend the protection of vilification provisions “to religious communities which are heterogenous and do not stand identified with any particular ethnic community”.
The Commission’s evaluation of the policy arguments
4.58 The criminal law should intervene only where there is a clearly identifiable need and where the prohibited conduct is capable of accurate definition, so as not to be unduly repressive of individual rights and freedoms. The offence of blasphemy does not meet these criteria.
4.59 As regards an offence based on insulting religious feelings, section 4 of the Summary Offences Act and s 4A of the Inclosed Lands Protection Act 1901 already cover offensive conduct and offensive language in public places or in private. A number of similar offences govern behaviour in specific situations, such as the railways. However, the creation of a new offence aimed at the protection of religious feelings would add little to the existing law while creating fresh problems of definition and application. Further, it may have a chilling effect on free speech and be wasteful of the limited resources possessed by the community for the control of crime.
4.60 Option Three attempts to provide more appropriate solutions to the problems of religious intolerance in contemporary society, but the Commission considers its review of the Anti-Discrimination Act 1977 (NSW) as the appropriate forum for discussion of the extent of religious vilification legislation. It is appropriate that the Commission considers the possibility of making unlawful the incitement of hatred and violence on the ground of religion as part of this review.
4.61 The key to these offences is not the protection of the individual’s feelings from injury, but the protection of the relevant group from the incitement of hatred and violence against its members. Historically, the political impetus for the introduction of the vilification provisions has been linked to the incidence of “hate” or “bias”65 crime and the distribution of hate propaganda against certain groups. The case for legal regulation of “hate speech” and incitement to violence against certain groups is based on several principles, such as the need to reduce threats to social cohesion and public order by encouraging and preserving tolerance; the normative power of a clear legislative expression that the community disapproves of certain types of behaviour; reversing the inferior status accorded to historically disadvantaged groups; and respecting cultural and group identity. The novel inclusion of the vilification provisions in the Anti-Discrimination Act clearly implies that considerable weight has been given to the view that the legislation sets out clear community standards which can positively influence behaviour. The use of the conciliation mechanism with regard to vilification also reflects the faith that has been placed in the educative potential of the respondent having to confront the complainant and learn that his or her conduct is unacceptable.
OPTION FOUR: ABOLITION WITHOUT SPECIFIC REPLACEMENT
4.62 The final option is the abolition of the offences of blasphemy and blasphemous libel without specific replacement.
Submissions in support of Option Four
4.63 Twenty-three submissions were received in support of the option to abolish the offence of blasphemy, ten from organisations and thirteen from individuals or families. In addition, the majority of callers to a radio talkback program provided to the Commission as a submission were in favour of abolition.66 The reasons given for the recommendation of abolition may be summarised as follows.
Blasphemy is an anachronism
4.64 A number of submissions expressed the view that the law of blasphemy is anachronistic and irrelevant to the circumstances of modern Australian society.67 As a matter of practice, the offence is very rarely used in the English-speaking world, and is even more rarely successful.68 One person thought that the issues were irrelevant given the far more pressing problems currently facing society.69 As a matter of principle, the Humanist Society submitted that:
by far the strongest case for abolishing the law of blasphemy arises from its nature. It is a relic of religious persecution, a penalty on opinion and it defies the hard-won freedom of speech which underpins democracy. It is inequitable. It does not protect the often vilified atheists, agnostics, pagans and infidels.70
4.65 A number of submissions noted that the rarity of prosecutions in modern times should not lead to complacency about the need for active reform:
The lack of successful prosecutions should not be used as a rationale for making no change. Long dormant offences - particularly those restricting freedom of speech - have a habit of being revived when least expected. See for example the history of criminal defamation.71
4.66 The historian, Mr Ken Cable, provided the Commission with information on the role of the established church, arguing that slander against God was at the centre of the offence and that the object of the law was to protect the community against God’s wrath and not to protect the religious sensibilities of others. Because of this emphasis, there could be no blasphemy against a non-Anglican God because in those cases the community would be in no danger of divine retribution. However, the submission noted that the concept of blasphemy was obsolete and that an “established church” was, if anything, a mere matter of convenience.72
The limited scope of the offence is unfairly discriminatory
4.67 There was a widespread feeling that blasphemy laws are discriminatory and anomalous in a multicultural society.73 One submission was of the opinion that to give one religion a special status would contravene s 116 of the Constitution.74 A number of submissions were concerned about the discriminatory effect against non-Christians, atheists and agnostics.75
The law is deficient and uncertain
4.68 The submission of the Free Speech Committee raised a number of difficulties with the existing law of blasphemy.76 It echoed the view of the English Law Commission that the law is “to an unacceptable degree uncertain” making it difficult to know in advance whether a particular publication will be blasphemous and basing liability on differing subjective interpretations which may vary with time. It was further submitted that the mens rea for the common law offence of blasphemy (as determined in the United Kingdom by the House of Lords) is highly undesirable, and that the application would involve an impermissible degree of arbitrariness, since some “attacks” on Christianity are authorised in the name of bona fide debate.
Extension to other religions
4.69 Despite its discriminatory operation, the submissions in this category argued strongly against extending the protection of the law of blasphemy to other religions.77 It is argued that the requirement that “all faiths be equal before the law” can best be achieved by abolition.78
4.70 Firstly, it was submitted that extension to other religions would raise “impossible questions” about what constitutes a religion.79 The point also was made that such a course raises questions of why non-religious philosophies, belief-systems and personal attributes should not be afforded similar protection.80
4.71 It was also submitted that extension could create difficulties between and within religions, and would be “fraught with danger for this increasingly secular society”.81 It was argued that:
it is against the interests of religions to have the law extended, since all religions involve beliefs which are considered blasphemous by other religions. Extension of the law would encourage inter-religious strife and cross prosecution.82
As one submission pointed out, “in the end, all religions would suffer, not being able to preach anything without legal advice”.83
4.72 Three further general policy arguments emerged from these submissions. Some submissions pointed out that an extension to other religions would quite unjustifiably restrict debate over religion.84 Some submissions raised the possibility that extension of the offence to other religions (and, perhaps, smaller cults) may prevent exposure of, and discussion about, allegedly unacceptable practices.85 Finally, some submissions expressed fear that extension of the scope of the offence would result in a revival of its use, leading to increased litigation and a drain on the public purse.86
Freedom of speech arguments
4.73 Freedom of speech was a fundamental concern of many of the submissions.87 The point was made that, in a democracy, the onus for justifying restrictions on freedom of speech rested heavily upon those supporting the restrictions.88 While it was recognised that freedom of religion also was an important human right, it was submitted that:
the freedom of expression of all cannot be limited by the religious convictions of some, since freedom of expression is integral to democratic life and is itself necessary for the protection of freedom of religion.89
4.74 Freedom of speech was considered from a number of different perspectives. From the point of view of the society at large, it was put by Rabbi Apple, among others, that in a democracy all ideologies must tolerate vigorous questioning, debate and criticism.90 From the point of view of religion, Keith Mason QC stressed that it was in the interests of a religion to have its truths exposed to the “market place of public debate”.91 A number of submissions suggested that those members of the community holding strong religious beliefs should be sufficiently confident of their views to be able to deal with the contrary views and criticism of others.92 From the point of view of individual rights, the offence of blasphemy was condemned in some submissions as unacceptably restrictive of freedom of speech and freedom of information:
The law does not protect the faithful so much as penalise the unfaithful. Without recourse to law, the faithful can protect themselves from writing which they may be outraged by through the exercise of their right not to read that writing. What the law does is prevent people who may not be outraged by that writing from exercising their right to read it.93
Possibility of social divisiveness
4.75 It was pointed out by some submissions that Australia has a reasonably good record of religious tolerance, and the desire to maintain this was expressed.94 The possibility of an expanded offence “rekindling obsolete and archaic laws ... fostering dangerous and divisive attitudes in the community” was clearly seen as a matter of concern.95
The role of the law
4.76 A number of submissions argued that anti-discrimination laws and the criminal laws protecting public order provide sufficient safeguards for the sensibilities of the religious members of the community, and that there was no need for other legislation in the area.96
4.77 One submission discussed the idea that laws should not protect any one religion and cannot ever be the appropriate way to bring harmony between religions. Such matters would be better dealt with by education and not by laws at all.97 It was also pointed out that, from a religious point of view, it may be counterproductive to the interests of the Church to rely on the secular law for support.98
The separation of Church and State
4.78 Some submissions advocated maintaining as rigid a separation of Church and State as possible,99 and one organisation felt that:
in a secular society, there is no role for the State in enforcing religious attitudes for a single denomination or religion or limiting religious debate.100
The Commission’s evaluation of the policy arguments
4.79 Each of the other three options is problematic. To adopt Option One would leave untouched the problems identified with the current offence. Thus, the uncertainty concerning the status and elements of the offence, its limitation to Christianity and the sentencing and procedural problems would remain untouched. On the other hand, a codified offence, while addressing many of the legal issues identified with the retention of blasphemy, would ignore the policy concerns. Thus, the question of how the offence is to be justified - in terms of protecting religion, personal feelings or society or in terms of the maintenance of public order - and issues of freedom of speech are not addressed by adopting Option Two. In addition, definitional problems would inevitably arise if the offence were to be extended beyond Christianity. Option Three attempts to provide more appropriate solutions to the problems of religious intolerance in contemporary society, but the Commission considers that the specific form of these solutions are more appropriately dealt with in its review of the Anti-Discrimination Act 1977 (NSW).
4.80 There have not been any successful prosecutions for blasphemy in New South Wales this century, and it is exceedingly rare that such a charge is even considered, in light of the plethora of public order offences which are available. There have been no prosecutions for blasphemy in other Australian states, Scotland, Ireland, New Zealand or other comparable jurisdictions for over 50 years, and every law reform commission which has considered blasphemy law reform has recommended abolition of the offence. The arguments raised in DP 24 and in this chapter in favour of abolition of the offence of blasphemy suggest that it is the most commendable option in a modern, pluralistic and secular society. Abolishing the offence of blasphemy would not undermine Christianity, but would be more consonant with the multi-religious, multicultural society in which we live.
Conclusion
4.81 The Commission favours the abolition of blasphemy, and considers there is no need for a substituted or replacement offence. Abolition of the offence without replacement raises the issue of the need to provide adequate legal protection for religions and religious beliefs. The Salman Rushdie affair in England demonstrated the depth of the religious feelings in parts of British Muslim communities. However, the public demonstration of those feelings also created hostility towards Muslim communities from many people in the wider community.101
4.82 In Australia, the Gulf War stirred up hatred and hostility against Muslims. However, the way to address such matters is not, in the Commission’s view, by retention or expansion of the blasphemy laws. Rather they should be addressed in the context of determining whether conduct which amounts to the incitement of hatred or violence against a person on the ground of religion should be prohibited. The Commission’s review of the Anti-Discrimination Act 1977 (NSW) is the appropriate forum to consider this matter. The policy concerns which underpin the anti-discrimination legislation will inform such a discussion, and thus the issues can be dealt with in a more cohesive and comprehensive fashion.
Recommendation:
The common law of blasphemy should be abolished.
FOOTNOTES
1. Radio 2 JJJ.Tape provided as a submission dated 3 April 1992 by Owen Trembath who conducted the discussion.
2. England and Wales. Law Commission. Offences Against Religion and Public Worship (Report No 145, 1985). At para 2.7, the Law Commission states that a large number of correspondents gave no reason for opposing the abolition of the law of blasphemy.
3. Submissions of the Southside Christian Fellowship (6 February 1992); R Wilkinson (26 March 1992); C Slough (25 March 1992); E Lane (25 March 1992); A Jago (5 May 1992) and S Gayner (1 May 1992).
4. Submission of R Golder (14 April 1992).
5. Submissions of the Southside Christian Fellowship; G Thornley (21 March 1992); M Milham (23 March 1992); S Donald (4 April 1992).
6. Submission of R Thorncroft (7 April 1992).
7. Submission by the members of the Hurstville Baptist Church, by Mr J R Wyard, a deacon of that church (23 March 1992).See also the submission of R Doran (23 April 1992).
8. Submission of Stewards’ Foundation of Christian Brethren (5 March 1991).
9. Submission of A Seymour (29 April 1992).On the other hand, the submission of E Lane put the position that the rise of sodomy (as evidenced by the Mardi Gras) and gambling following the legalisation of homosexuality and off-course betting were analogous to the moral decline which would follow from the abolition of blasphemy.
10. Submissions of H and F Henderson, on behalf of the Parish Council of Elders of the Camden Uniting Church (2 April 1992); D Thornton (11 May 1992).
11. Submission of the Presbyterian Church of Australia of Mr KJ Swan, Convenor, Church and Nation Committee (23 April 1992).
12. Submission of R Thorncroft.
13. Submission of M Welle (29 April 1992).
14. Submission of Mr KJ Swan, Convenor, Church and Nation Committee.
15. Submission of Mr SH Fraser, Law Agent, and Mr G Downes QC, Procurator (18 April 1992).
16. At p 2-3
17. Submission of the Rev J Boyall (28 April 1992).
18. Submissions of the Presbyterian Church; R Cush (20 March 1992) and R Thorncroft.
19. See DP 24, at para 2.8.
20. Charles Bradlaugh’s controlled and reasoned attack on Christianity did not offend Lord Coleridge’s restatement of blasphemy: R v Bradlaugh (1883) 15 Cox CC 217. It probably achieved far more for the anti-religious cause than John Gott’s scurrilous Rib Ticklers: R v Gott (1922) 16 Cr App Rep 87.
21. New South Wales. Law Reform Commission. Blasphemy Discussion Paper 24 at para 4.52 at 62.
22. DP 24, at para 4.11.
23.. DP 24, at para 4.13.
24. See Chapter 2 at paras 2.8 - 2.9
25. [1917] AC 406, at 461.
26. [1979] AC 617.
27. See, for example, R v Ramsay and Foote (1883) 15 Cox CC 231; Whitehouse v Lemon [1979] AC 617.
28. DP 24, at para 4.21.
29. DP 24, at paras 4.27-4.28. See also 1.4.
30. Cf the European Commission of Human Rights’ decision in Gay News Ltd & Lemon v United Kingdom (1982) 5 EHHR 123.Despite the fact that the law of blasphemy was held to violate the right to freedom of expression, it was upheld on the ground that it protected the prosecutrix’s rights. The law’s main purpose was to protect the rights of citizens not to be offended in their religious feelings by publications.
31. Sections 20B-20D.
32. [1979] 2 NZLR 531. At 543, it was stated that “a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside that group. They also have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.”
33. [1983] 1 All ER 1069,
34. DP 24, at para 4.48.
35. DP 24, at para 4.49.
36. DP 24, at paras 2.105-2.107.In para 2.107, the Commission considered whether reckless indifference would satisfy the mental element for blasphemy. Although this would normally be the case, there is an argument that the vague and uncertain actus reus element in blasphemy should be offset by a restrictively defined mental element in order to limit the scope of criminal liability.
37. Bowman v Secular Society [1917] AC 407. See esp at 460, per Lord Sumner.
38. See generally M Tregilgas-Davey, “Ex parte Choudhury - An Opportunity Missed” (1991) 24 Modern Law Review 294 at 296.
39. The submission of the NSW Council of Churches, discussed in detail below (15 April 1992).
40. Representing the Anglican Church (Sydney Diocese), Baptist Church, Churches of Christ, Presbyterian Church, Uniting Church, Fellowship of Congregational Churches, The Salvation Army and the Reformed Church.
41. Cardinal Clancy, Archbishop of Sydney also submitted that an intention to foment public disorder should not be an element of the offence, as injury to feelings should be sufficient to claim redress (11 May 1992).
42. This was also the submission of the Australian Federation of Islamic Councils Inc (28 April 1992); Cardinal Clancy, J Coombs (19 March 1992); the New South Wales Council of Churches (15 April 1992); Dr N Weeks on behalf of the Reformed Church of Liverpool (9 April 1992) and two callers on Radio 2 JJJ talkback program. Tape provided to the Commission as a submission by solicitor Owen Trembath who conducted the talkback discussion .
43. Submission of Cardinal Clancy, Archbishop of Sydney.
44. Submission of J Coombs.
45. Submission of the New South Wales Council of Churches.
46. (1983) 154 CLR 120.
47. Submission of the Islamic Council of New South Wales (7 April 1992).
48. See above para 4.33
49. (1983) 154 CLR 120.
50. 58 ALJ 366 at 366. The case note argues for a subjective definition of religion and points out that the subjective aspect of religion receives more emphasis in the international domain, where religion is regarded as a human right, with the stress on freedom of belief.
51. Law Commission, WP 79 at paras 8.22 and 9.2.
52. See para 3.27 of Chapter 3.
53. Anti-Discrimination Act 1977 (NSW) s 20C.
54. Anti-Discrimination Act 1977 (NSW) s 20D.
55. Anti-Discrimination Act 1977 (NSW) s 4 (1)
56. National Inquiry into Racist Violence Racist Voilence: Report of the National Inquiry into Racist Voilence in Australia/Human Rights and Equal Opportunity Commission (AGPS, Canberra, 1991). The NIRV recommended that the Racial Discrimination Act 1975 (Cth) be extended to prohibit conduct which amounts to racist harassment and the incitement of racial hostility. It also recommended the creation of two new criminal offences in the Crimes Act 1914 (Cth) to cover an offence of racist violence and intimidation and an offence of incitement to racist violence and racial hatred, which is likely to lead to violence.
57. The final report of the Royal Commission into Aboriginal Deaths in Custody recommended that racial vilification legislation along the lines of the New South Wales model be enacted, but be restricted to create only a civil wrong. Australian Royal Commission into Aboriginal Deaths in Custody. National Report: Overview and Recommendations (AGPS, Canberra, 1991) at para 213.
58. Australia. Law Reform Commission. Multiculturalism and the Law (Report 57, 1992) at paras 7.33-7.39. A majority of the Commission was in favour of making incitement to racist hatred and hostility a civil wrong, susceptible to conciliation and (if that fails) civil remedies. Two Commission members dissented, proposing a new provision for the Crimes Act 1914 (Cth) relating to the incitement of hatred and hostility. The Commission, once again by majority, also recommended amendments to the Commonwealth legislation regulating broadcasting, including a provision prohibiting the broadcast of material likely to incite hatred or hostility on the grounds of race.
59. Public consultation processes were instituted in 1993: written submissions were invited and public meetings conducted by the Attorney General’s Department. Officers of the Department also carried out an extensive media campaign.
60. The provisions would also include acts which could be offences. This allows an individual to receive personal redress in much the same way that criminal defamation is a crime, but the act of defamation can also be the subject of a claim for damages in the civil courts. There are a number of exceptions in the legislation: acts that are done reasonably and in good faith in relation to artistic works; statements, publications and the like made for academic, artistic or scientific purposes or for any other worthwhile purpose in the public interest; fair reporting of an event or matter of public interest.
61. “PM backs racial vilification bill” Sydney Morning Herald 30 May 1994 at 3; “Racists may face prison terms” The Australian 30 May 1994.
62. Submission dated 20 March 1992. Note that this was also the view of N Weeks on behalf of the Reformed Church of Liverpool.
63. Submission of the Anglican Church Diocese of Sydney (17 July 1991).
64. Submission of the National Spiritual Assembly of the Baha’is of Australia Incorporated (5 April 1993).
65. “Hate crime” refers to crime motivated by prejudice, bias or hatred towards a particular group of which the victim is presumed to be a member. Victims of hate violence are chosen because they are members of a particular group, not because of who they are as individuals. This is a significant difference from other forms of interpersonal violence. Hate crime is intended to intimidate all other people who belong to the same group as the victim.
66. Radio 2 JJJ talkback program.
67. Submissions of Rabbi Raymond Apple (which in his opinion represented the views of the orthodox rabbis of Australia, dated 6 May 1992); B Bryceson (18 October 1991); New South Wales Bar Association (30 July 1992).
68. Submission of the Rationalist Association of NSW Incorporated (23 April 1992).
69. Caller to Radio 2 JJJ talkback program.
70. Submission of the New South Wales Humanist Society (22 April 1992).
71. Submissions of the Australian Journalists Association (27 March 1992); Australian Press Council (14 April 1992).
72. Submission of K Cable (9 February 1991).
73. Submission of the New South Wales Bar Association; Buddha-Dhamma Foundation (13 January 1992); Australian Press Council; Free Speech Committee (4 May 1992). The latter submission adopted the reasons for abolition presented in The Crime of Blasphemy - Why It Should Be Abolished (Report of the International Committee for the Defence of Salman Rushdie and his Publisher, 1989).
74. Submission of Rabbi Apple.
75. Submissions of C and R Besselink (27 March 1992); V Potempa (25 April 1992); N Stoneman (undated), J Tendys (undated).
76. Submission of the Free Speech Committee.
77. Submissions of the New South Wales Humanist Society; Free Speech Committee; caller to Radio 2JJJ talkback program.
78. Submission of Free Speech Committee.
79. Submissions of Rabbi Apple; B Bryceson; Free Speech Committee.
80. Submission of the Free Speech Committee.
81. Submission of T Bain (26 March 1992).
82. Submission of the Free Speech Committee.
83. Submission of the New South Wales Humanist Society.
84. Submissions of the Australian Journalists Association; Australian Press Council; Free Speech Committee.
85. Submissions of B Bryceson; Rationalist Association of NSW Incorporated; Southside Christian Fellowship.
86. Submissions of T Bain; New South Wales Humanist Society; L Emmett (29 April 1992).
87. Submissions of G James (31 March 1992); New South Wales Council for Civil Liberties Inc (21 February 1992); The Australian Journalists Association; Australian Press Council; Free Speech Committee.
88. Submission of The Australian Journalists Association.
89. Submission of the Free Speech Committee.
90. Submissions of Rabbi Apple; N Stoneman.
91. Submission of Keith Mason QC, Solicitor General of NSW
92. Two callers to Radio 2 JJJ Talkback program.
93. Submission of the Free Speech Committee.
94. Submission of the Rationalist Association of NSW Incorporated.
95. Submission of V Potempa. See also submissions of G James; New South Wales Humanist Society.
96. Submissions of Rabbi Apple; New South Wales Council for Civil Liberties Inc.; The New South Wales Bar Association. But note that the Probation and Parole Officers’ Association of New South Wales thought that it was the laws in regard to offensive language and behaviour that were themselves in need of urgent attention (24 April 1992).
97. Submission of Buddha-Dhamma Foundation.
98. Submission of Keith Mason QC, Solicitor General of NSW.
99. Submission of B Bryceson; caller to Radio 2 JJJ talkback program.
100. Submission of the Australian Journalists Association.
101. S Poulter “Towards legislative reform of the blasphemy and racial hatred laws” [1991] Public Law 371.
