Is It Legal To Commit 'Blasphemy' In Australia?

The crime of blasphemy has had a bit of publicity lately. British comedian Stephen Fry was recently reported to police for comments made on Irish TV about what he would say to God if he had the chance. Meanwhile, Jakarta Governor Ahok was convicted and sentenced to two years in prison for blasphemy in Indonesia.

But what about here in Australia? Is committing "blasphemy" still considered illegal? Let's take a look at the laws as they currently stand. (We think they are going to surprise you.)

Blasphemy is still classed as a crime in some parts of Australia. That's right: you could find yourself reported to police or even sent to prison for blasphemy.

The crime of blasphemy

Blasphemy is a crime against the common law (the body of judge-made law we inherited from England). Only Queensland and Western Australia have abolished it. But it continues to exist in New South Wales, Victoria, South Australia, Tasmania, the Northern Territory, the ACT and Norfolk Island.

The crime of blasphemy is not about vilifying or inciting hatred against people on the basis of their religion. Some states have separate laws against that.

The crime is about protecting God and Christian doctrine from scurrilous commentary, and Christian religious sensibilities from offence.

The Federal Court has described the elements of the offence of blasphemy as follows:

The essence of the crime of blasphemy is to publish words concerning the Christian religion, which are so scurrilous and offensive as to pass the limits of decent controversy and to be calculated to outrage the feelings of any sympathiser with or believer in Christianity.

A temperate and respectful denial of the existence of God is not an offence against the law, which does not render criminal the mere propagation of doctrines hostile to the Christian faith. The crime consists in the manner in which the doctrines are advocated. Whether in each case this is a crime is a question of fact for the jury.

In other words, it is a crime to “outrage the feelings” of Christians in respect of their religious beliefs.

Blasphemy has a loose similarity with Section 18C of the Racial Discrimination Act, which makes it unlawful (but not a crime) to offend someone on the basis of their race. Federal Liberal MP and former human rights commissioner Tim Wilson has said that extending 18C to cover religion would amount to a “national anti-blasphemy law”.

The crimes legislation in NSW and the ACT both set out identical minor limitations on blasphemy prosecutions:

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.

In other words, it’s a crime in NSW and the ACT to outrage the religious feelings of a Christian, but only if you’re intending to scoff at Christianity. Blasphemy can be committed by speech, writing, art or other form of communication.

The crime of blasphemy is only about Christianity. You are legally free to blaspheme against any other religion.

There have been no recent prosecutions in Australia. The most recent NSW conviction was of William Jones in 1871 who was sentenced to two years’ prison for blasphemy. In 1919, Robert Ross was sentenced to six months’ prison under old federal postal laws for attempting to send blasphemous material about communists ransacking Heaven through the post.

However, in 1997 George Pell tried unsuccessfully to get a court injunction to prevent the National Gallery of Victoria from displaying the Piss Christ artwork on the basis that the artwork was blasphemous.

Why blasphemy laws are bad

The crime of blasphemy is wholly inconsistent with a secular and religiously diverse Australian society.

The crime of blasphemy gives official preference to Christianity over other religions, since it is lawful to outrage the religious feelings of adherents of non-Christian religions. The law should not play favourites among religions.

It also involves the state enforcing religious orthodoxy (correct belief) and religious orthopraxy (correct behaviour) and threatening people who do not conform with criminal punishment. This is not a proper role for the law.

Blasphemy laws are also contrary to international human rights norms, which Australia is supposed to uphold. The United Nations Human Rights Committee has said in its General Comment 34, outlining its official interpretation of the right to freedom of thought, conscience and religion, that:

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the [International Covenant on Civil and Political Rights].

When might the crime of blasphemy be abolished?

New Zealand Prime Minister Bill English recently promised to abolish the crime of blasphemy after he was told it still exists in NZ, but has said there’s no urgency to do so.

In 1994, the NSW Law Reform Commission recommended abolishing the offence of blasphemy in NSW. The commission also noted that every law reform commission that has considered the offence of blasphemy has recommended it be abolished. Due to lack of political will, NSW has never acted on this recommendation.

Abolition in Australia might occur soon. A federal parliamentary committee is currently conducting an inquiry into the right to freedom of religion or belief. I recently appeared before that committee and suggested that the committee recommend that federal parliament use its constitutional power to implement Australia’s international human rights obligations to abolish the crime of blasphemy throughout Australia.

As yet there is no indication of when the committee will hand down its recommendations. Let’s hope those recommendations include abolishing the crime of blasphemy.

The Conversation

Luke Beck, Senior Lecturer in Constitutional Law, Western Sydney University

This article was originally published on The Conversation.


Comments

    This is what I expected since the LNP (and in effect Australia) is really being run by the Christian Conservative Right-Wing of the party and the Australian Christian Lobby utilizing Malcolm Turnbull as their puppett as he is the most spineless excuse for a Cockroaches Arse, in Australia. When our counrty is no longer governed by religous zealots, then we can get rid of these draconian laws that should have been revoked last century.

    This is why Australia is so backwards on the world stage. Every aspect of our countries authorities has been poisoned with backwards religous idealism.

    Last edited 19/06/17 4:52 pm

      Oh wait?!

      I am in South Australia. Now I am going to be arrested for Blasphemy, for pointing out the truth! Egads!

      Your rant about us being backwards on the world stage, being run by the Christian lobby etc would have a lot more force if you weren't commenting on an article which stated that the last prosecution for blasphemy was in 1871 (the more "recent" 1919 conviction was under an Act no longer in force in that form).

      I agree that any semblance of blasphemy laws should be removed - but the reason there has been so little impetus is that it has so far been a non-issue - not because the ACL or otherwise control the country.

      Labor was in power for two terms from 2007-2013 and did nothing about this, even with an atheist at the helm for a chunk of it.

    Sweet F****ng Christ, i am in WA so i can do it!

      This is one of those rare moments when you realise WA is not as 'stuck in the past' as those easterners make us out to be ;)

    This is just another one of those laws that still exists. But no one would bother attempting to prosecute anyone for due to the political shitstorm they would bring on themselves

    Oh this will be interesting. Sits back in a comfy chair with a packet of Maltesers and settles in for the shit storm. :)

    I would have thought section 116 of the constitution would prevent governments making laws specific to one religion.

      s.116 only applies to the Commonwealth, not states. States can do what they like!
      That said, I'd much prefer that people are free to say what they like; then we all know where they stand. For same reason I think 18C is a crock, and detrimental to free social interaction. The thing about Christianity is that its not about rules...despite what many Christians claim; it is not a social engineering club.

    Surely they would need to prove that god exists (and just because there are billions of delusional people that think one does doesn't constitute evidence) in order to charge a person with insulting said deity.

    Another idiotic law based on anthropomorphism. Sensible kids grow out of believing in mythical people and creatures, others grow up to be brainwashed, indoctrinated stupid adults believing in an impossible, un-achievable creation.
    None of them are able to answer the question, "If you believe in God, who created God?"

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