INTRODUCTION
4.1 In this Chapter, the Commission canvasses the main options for reform of the law of blasphemy, ranging from retention of the common law to abolition. The Commission currently favours the latter option, for the reasons discussed below, but it is important to note again that the views expressed in this chapter are not the final recommendations of the Commission, which will be determined after public consultation.
OPTION ONE: RETENTION OF THE COMMON LAW
4.2 The first option is simply to retain the existing common law offence of blasphemy - that is, to take no action. Below, we consider the general policy arguments for and against retention of a blasphemy offence, and then consider some questions about the current legal definition of the offence.
Policy arguments in relation to retention
4.3 The Law Commission of England and Wales identified four general arguments in favour of retention of a the common law offence of blasphemy: (1) the protection of religion and religious beliefs; (2) the protection of society; (3) the protection of individual feelings; and (4) the protection of public order.1 These possible justifications are discussed in turn, below.
Protection of God and religion
4.4 As discussed in Chapter 2, blasphemy had its origins in ecclesiastical law, where it was developed in conjunction with the related religious offences of heresy, schism and atheism.2 As the historical material indicates, the offence has always had a dual justification, linking the protection of the established (Christian) church with the maintenance of the established social and political order. The former concern may have dominated in the early development of the offence, but by the late nineteenth century3 the case law clearly manifests a greater interest in the latter.
4.5 As a consequence of the shift in focus, the courts began to demand evidence that there was not only a grave insult to Christianity but also that a breach of the peace was caused or apprehended in the process. Further, the courts removed liability for criticism which was moderate and reasoned, even if trenchant. This aspect of the development of the law also is found in the Crimes Act 1900 (NSW), s574.
4.6 Thus while the context of blasphemy may still be religious, the protection of religion has become incidental. The Law Commission of England and Wales has made the point that if the role of the blasphemy offence is to promote the observance of Christianity, it is anomalous that only scurrilous attacks on the religion are punishable. Informed criticism of Christianity is far more destructive of religion, and has a greater prospect of promoting irreligion than gratuitous and offensive abuse: “reasoned persuasion is ultimately far more effective than attacks devoid of intellectual content.”4 Yet it is established that “a temperate and respectful denial, even of the existence of God, is not an offence against our law, however great an offence it may be against the Almighty Himself.”5
4.7 Furthermore, the cognate offences of heresy, schism and atheism are no longer offences known to the law, although such actions and beliefs are no doubt inimical to the status and welfare of the Christian religion. The view for some time has been that, whatever the merits of promoting religious values and respect for religious beliefs, the use of the criminal law is entirely the wrong instrument. Indeed, the criminal law is incapable of achieving these aims “without resort to measures which would be regarded as unacceptable infringements upon freedom of expression in modern society ... [which] could give rise to greater problems than they solve.”6
4.8 It is natural for people to wish to protect objects of their love, respect or veneration. It is entirely understandable that Christians should wish to defend the God they worship from offensive abuse. It is equally understandable that followers of other religions desire protection for the object(s) of their religious worship. Even if the utilitarian arguments expressed above about the role of law in protecting religion are rejected, there remains the question of whether criminal sanctions should be employed for the sole protection of the Christian religion. We no longer live in a society in which one religion formally dominates, and the law should reflect contemporary social attitudes and mores, rather than commit itself forlornly to old precepts.
Protection of society
4.9 Blasphemy emerged as a distinct common law offence in England at the time of the Restoration. The country had seen a civil war resulting in the execution of a King, a decade of republicanism, and a restoration of the monarchy in the space of 20 years. It was inevitable that any hint of criticism of the Establishment would be treated harshly:
In the post-Restoration politics of 17th and 18th century England, Church and State were thought to stand or fall together. To cast doubt on the doctrines of the established church or to deny the truth of the Christian faith upon which it was founded was to attack the fabric of society itself; so blasphemous and seditious libel were criminal offences that went hand in hand.7
4.10 The law of blasphemy also was much used in the 19th century when republican fervour was sweeping Europe and attacks on organised religion were regarded as thinly disguised calls to arms in the cause of revolution. The courts became the battleground between the Secularists and the “Society for Carrying into Effect His Majesty’s Proclamations against Vice and Immorality”; the Freethinkers and the “Society for the Suppression of Vice”.8 In modern times, some religious organisations believe that the mere presence of an offence of blasphemy is sufficient to keep lawlessness in check, and any attempt to remove a law which encourages respect for and fear of God would result in increased criminality.
4.11 Today, the role of blasphemy in preserving the social fabric in Australia is negligible. (And overseas - particularly in Eastern Europe and Latin America - the moral and political force of the church has been used successfully in recent times to overturn established, but oppressive, governments.) There has only been one prosecution for blasphemy in New South Wales in the last 120 years, and 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.9
4.12 Any notion that the offence of blasphemy has a role to play in the preservation of social order relies upon a showing that the existence of the offence has some deterrent effect. There is no evidence of this. On the contrary, it is unlikely that many people are aware that the offence actually exists in modern law, and few would be able to define its scope or penalty. As the Law Commission of England and Wales has said:
it is a commonplace that differences of view on religious matters run deep, and the existence of the criminal law is unlikely to deter those with a determination to express their views, even in the sharpest terms, about practices and beliefs which they consider undesirable ... .10
4.13 Moreover, the crime of blasphemy may 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.11 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, 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”.12 The actual sentences imposed for blasphemy in recent times probably would not dissuade someone from breaching blasphemous laws for principle or profit. The defendants in Whitehouse v Lemon, for example, ultimately only received fines.13
4.14 In Chapter 2, we noted that in 1949 Lord Denning questioned the continued viability of the blasphemy offence based on the need for the protection of society:
The reason for this law was because it was thought that a denial of Christianity was liable to shake the fabric of society, which was itself founded on the Christian religion. There is no such danger now and the offence of blasphemy is a dead letter.
Lord Denning may have incorrectly predicted subsequent events in England, but the absence of a single successful prosecution for blasphemy in Australia in this century must lead to the suggestion that as a matter of practice, blasphemy is “a dead letter” in this country.
4.15 In Whitehouse v Lemon,14 Lord Scarman defended the contemporary value of maintaining the blasphemy offence and extending it to cover non-Christian religions:
The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt.
4.16 There are some major problems with this approach, however. First, the history and development of the law of blasphemy is in no way linked with the promotion of religious tolerance. Blasphemy was not a primitive form of race relations law or anti-discrimination law. Quite the contrary, the criminal law and its severe sanctions were used expressly to enforce the pre-eminence of one religion over all others, running contrary to the modern view that “the law does not assert the truth of a single system of religious beliefs”.15 Thus, to hold that an attack on any religious doctrine should be regarded as “blasphemy” is to render the concept nugatory.
4.17 Second, the existing offence of blasphemy at least has the benefit of being self-limiting. The scope does not extend beyond the scurrilous attack on the central tenets of Christianity. If the offence was extended to all religions - leaving aside for the moment the significant difficulties in appropriately defining “religion” for these purposes - then an interlocking grid of blasphemy could be created, for it is fundamental to most faiths that they assert the truth of their own doctrines and at least implicitly deny the validity of others. Does the devout Christian who fervently asserts the truth of his or her own beliefs inevitably blaspheme against Judaism, Islam, Buddhism and so on? Might the “reform” Jew blaspheme against the “orthodox” branch of Judaism? Would strong criticism of the Rastafarian use of marijuana as a religious sacrament blaspheme against that religion? Are these appropriate matters for the criminal courts to decide in any event?
4.18 Lord Scarman is no doubt correct in identifying racial and religious strife as negative forces capable of tearing at the fabric of society. One needs only to look at most of the world’s “trouble spots” for ready confirmation of this. However, the remedy does not lie in opening up the criminal courts to parties with strong religious convictions to pursue atheists or dissenting coreligionists or followers of other religions. This could only lead to much greater social dislocation than now exists. The view taken by one commentator is that:
An offence of blasphemy which uses the need to prevent religious persecution to prohibit the general publication of matter which offends the religious is actually an encouragement to religious persecution by those whom it is supposed to protect.16
4.19 Apart from those circumstances in which there is actual incitement to violence, and the intervention of the criminal law is both apt and necessary, the substance and techniques of anti-discrimination law in New South Wales are much better suited to the promotion of concepts of religious freedom and social tolerance, and to the remedying of conflict based on social difference.
4.20 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.
Protection of individual feelings
4.21 The Commission has no doubt that there are many members of the community who have 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 aesthetical beliefs, or that the veneration of religious ideas or objects is markedly different in kind from, say, the love of a patriot for flag and country, or the love of a parent for a child.
4.22 An early submission received by the Attorney General and forwarded to the Commission states that the present law of blasphemy has a role to play in educating the community to respect the beliefs of others. The Bishop of Leicester has argued that a law of blasphemy is still needed:
to register the fact that there are certain things that are so repellent to the general conscience and mind of the country that this hostility to them should have some form of expression.17
4.23 The criminal law does have an important role to play in both declaring the limits of acceptable behaviour and in educating people in that regard. It is also true that the promotion of tolerance for different beliefs, and respect for different opinions is a legitimate aim. The federal Government policy of multiculturalism, the current review of federal law by the Australian Law Reform Commission with the aim of identifying how the law and legal system can act to the disadvantage of minorities, and State anti-discrimination legislation, all have similar objectives.
4.24 On this view the justification for an offence of blasphemy is not that God is insulted or society is threatened, but that the feelings of religious individuals are outraged and offended. In a Parliamentary debate on a Bill to abolish the offence of blasphemy in the United Kingdom, one member stated that:
Blasphemy is an act of violence to the mind and spirit and deeply spiritual feelings of very large numbers, millions and millions, of people capable of entertaining such feelings. It is an assault upon the mind and spirit just as much as mayhem is an assault on the body.18
4.25 There is also judicial authority for the premise that this is the correct justification for the present existence of an offence of blasphemy. In the 1883 case of R v Ramsay and Foote, Lord Coleridge directed the jury to decide whether the libels:
are not calculated and intended to insult the feelings and the deepest religious convictions of the great majority of persons amongst whom we live.19
Lord Scarman also supported this view in Whitehouse v Lemon, stating that:
it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt.20
4.26 However, it is questionable whether the present law of blasphemy actually fulfils the valuable role of educating the community to respect the beliefs of others. If it is accepted that religious beliefs merit protection, the law should ensure that all such beliefs are protected equally; the respect shown by a Christian for an atheist should be the same as that shown by an atheist for a Christian, a Muslim for a Jew, a Hindu for a Sikh.21
4.27 The Commission begins with the principle that the law should only intrude upon the exercise of the freedom of speech where there is an absolutely compelling countervailing right which demands priority. This has been recognised at the international level in the International Covenant on Civil and Political Rights, to which Australia is a party, although the rights contained therein have not been entrenched in Australian municipal law. Article 19(1) of the Covenant recognises the freedom of expression, but art 18(3) provides that such limits as are necessary “to protect public safety, order, health or morals or the fundamental rights and freedoms of others” may be imposed by law.
4.28 In the Commission’s view, the balance in New South Wales has too often been made in favour of private feelings and public order, at the expense of the freedoms of expression and association. In any event, as a matter of positive law, it is possible to identify a large number of civil and criminal restraints upon free speech: the laws of civil and criminal defamation,22 criminal prohibitions upon indecent or obscene behaviour or publications,23 restrictions on material in the broadcast media,24 official secrets laws25 and many others, including offences against public order. The latter category is dealt with in the section following below.
Protection of public order
4.29 As discussed earlier in the Paper, the main rationale for blasphemy has shifted over time from the protection of religion to the maintenance of public order. To find this rationale sufficiently compelling to justify the retention of the common law offence, however, there would have to be a showing that the publication of blasphemous material has led or is likely to lead to public disorder in New South Wales, and that the blasphemy offence is the best mechanism for preventing or punishing such conduct.
4.30 A range of other existing “public order” criminal offences may apply in this area. Some of these offences have a specifically religious context. Section 56 of the Crimes Act 1900 (NSW) creates statutory offences of obstructing (by threats or force), striking or offering violence to a member of the clergy in the discharge of his or her duties It is modelled on s36 of the Offences Against the Person Act 1861 (UK) which has been recommended for repeal without replacement by the English Criminal Law Revision Committee.26 The maximum penalty for a conviction under s56 is imprisonment for two years. This is the same maximum available under the common assault provision in the Crimes Act.27
4.31 Sections 106-107 of the Crimes Act provide for offences of “sacrilege”, which are breaking and entering with intent type offences with the aggravating element being that the place in question is “a place of Divine worship”. The latter term is helpfully defined in s4 as including “any building or structure ordinarily used for Divine worship”. The definition has not been judicially considered in New South Wales, but there is no reason to believe that the offence would be limited to Christian churches. The maximum penalty is 14 years imprisonment, or up to 20 years if the offence was committed with arms or in company.
4.32 Section 39 of the Imperial Acts Application Act 1969 (NSW) creates a statutory offence of “wilfully and without lawful justification or excuse” disquieting or disturbing any meeting of persons lawfully assembled for religious worship, or assaulting a person lawfully officiating at or attending such a meeting. The matter is to dealt with summarily and the maximum penalty is a fine of $100 or imprisonment for up to two months. The section is modelled on a Victorian statute, which in turn was based on ss 206-207 of the Queensland Criminal Code 1899. The substance of the section is drawn from two Imperial Acts: s15 of the Toleration Act 1688 (UK),28 and s12 of the Places of Religious Worship Act 1812 (UK). These latter statutes were repealed in their application to New South Wales by the 1969 Act, but s5(5) of that Act provides that in construing the new provisions regard may be had to the Imperial Acts for which they are substituted. The Toleration Act and the Places of Religious Worship Act protected only Christian churches, ministers, and worshippers. Although there is nothing in s39 of the Act currently in force which would expressly limit its application to Christianity, this limitation may be implied by reference to the Imperial enactments it replaces.
4.33 At common law there existed an ill-defined misdemeanour, the essence of which was the disruption of lawful religious worship. There is old authority for the broad proposition that “all irreverent behaviour” in a church or churchyard is criminal.29 English cases have dealt in particular with the disturbance of a priest of the established church in the performance of divine worship, and the striking of any person in a church or churchyard.30 The Brawling Act 1551 (UK) punished quarrelling, chiding or brawling in a church or churchyard, and although the Act has been repealed in New South Wales, it appears that the offence subsisted at common law before the statute was enacted31 and it may still obtain in the rather uncertain mixed common law and statute system that applies in this State.
4.34 This common law offence was considered by the Supreme Court of New South Wales in 1884.32 The Court unanimously held that the offence was in force in New South Wales and, notably, refused to limit the application of the offence to an established church, holding that “if the service is not illegal, then the common law applies for the protection of those participating in it.”33
4.35 Outside of the religious context, there is a range of other criminal offences which may cover, or potentially cover, much of the same territory as blasphemy. The term “public order offences” usually refers to that part of the criminal law which is principally concerned with the control of public space. The “keystone of public order legislation is usually a provision which permits the police to act where behaviour in a public place is regarded as offensive, insulting, abusive or indecent.”34 By creating offences which restrict an individual’s right to free expression, and by their broad definitions give police enormous operational discretion, a balance has to be struck between the genuine concern for public safety and order on the one hand, and toleration for behaviour that is merely annoying or eccentric (rather than threatening) on the other.
4.36 The current provisions relating to offensive conduct are contained in s4 of the Summary Offences Act 1988 (NSW), which penalises offensive conduct (including, expressly, offensive language) in or within view or hearing of a public place35 or a school. It is a defence for the accused to satisfy the court that he or she had a “reasonable excuse” for behaving in the manner alleged. The maximum penalty for this summary offence is now a fine of six penalty units (approximately $600) or imprisonment for three months. An identical offence is created with respect to conduct in a non-public place, under s4A of the Inclosed Lands Protection Act 1901 (NSW).
4.37 In order for conduct or language to be offensive, it must be intended to wound the feelings, or arouse anger, resentment, disgust or outrage in the mind of a reasonable person.36 Without the need for any extension, the offensive behaviour offences clearly cover one type of conduct that the offence of blasphemy is designed to suppress: the gratuitous wounding of another’s feelings.
4.38 It is an indictable offence at common law for a person to commit in public an act of such a lewd, obscene or disgusting nature as to amount to an outrage to public decency, whether or not it tends to deprave and corrupt those who see it. Cases have centred on indecent exposure, but the offence is not so limited and some conduct presently punishable as blasphemous would fall within this definition. Indeed, the most recent English case to deal with the offence of outraging public decency relied heavily on Whitehouse v Lemon, the leading blasphemy authority.37
4.39 It is a common law misdemeanour in New South Wales to incite or solicit another person to commit a criminal offence.38 Unlike the law of conspiracy, no agreement is required between the parties. A common example of incitement would be a speaker at a political rally urging the audience to use violence against any person (or class of person) or property. An exhortation to harm a class of persons based on their religious beliefs could amount to blasphemy in certain circumstances. In any event, the offence of incitement could cover substantially the same mischief as blasphemy, as well as more serious threats of violence.
4.40 Another relevant area of public order legislation is that dealt with by the Anti-Discrimination Act 1977, as amended. By the Anti-Discrimination (Racial Vilification) Amendment Act 1989, s20C, it is provided that:
It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
Under this section, “racial vilification” becomes a ground of complaint under the principal Act, and the Anti-Discrimination Board is empowered to use its normal powers and procedures for investigation and conciliation or determination. Ultimately, civil remedies are available to a complainant under s20C, through the Equal Opportunity Tribunal. A wide definition of “public act” is included in s20B, covering virtually any form of communication to the public.
4.41 Section 20D creates an offence of “serious racial vilification” in the following terms:
4.42 Communications “done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate” are expressly exempted from any liability for racial vilification under s20C(2)(c), but not from liability for serious racial vilification.
4.43 Criminal penalties of a fine of up to 10 penalty units (approximately $1,000) and a maximum term of imprisonment for six months are available for a person convicted under s20D.39 A prosecution for serious racial vilification may be commenced only with the consent of the Attorney General, under s20D(2).
4.44 “Race” is defined in s4 of the Anti-Discrimination Act 1977 to include only “colour, nationality and ethnic or national origin”.40 There have been no reported cases under these new provisions in New South Wales, but the relevant case law overseas suggests that it may be possible for members of a religious group to argue that public acts aimed at them or their religious practices which incite hatred or provoke ridicule fall within the racial vilification provisions.
4.45 In Mandla v Dowell Lee,41 the House of Lords considered whether a Sikh, who had been refused admission to a private school with a “no turban” rule, had been discriminated against on the basis of race (under the “ethnic origins” branch of the definition) under the English Race Relations Act 1976, s3(1). The House of Lords unanimously held that members of the Sikh religion did constitute a “racial” group within the statutory definition (which is essentially the same as the definition used in the New South Wales legislation). Lord Fraser wrote:
For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. ... The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant: (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community ... .42
4.46 Earlier cases in England had established that members of the Jewish community belonged to a group with a “dual (racial and religious) character”,43 and in Mandla it was argued that it was “unthinkable that Parliament would have passed a Race Relations Act which did not afford protection for the Jews.”44 The New Zealand Court of Appeal in King-Ansell v Police 45similarly found that Jews were covered by the New Zealand Race Relations Act 1971. In King-Ansell, Richardson J wrote that:
a group is identifiable in terms of 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 the group. They have distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.46
4.47 The criteria in Mandla and King-Ansell for determining whether an ethno-religious group is included within the definition of “race” have been applied in the English courts and tribunals in recent years to decide that “Gipsies” fell within the definition,47 although Rastafarian did not.48
4.48 Given the interpretation of similar provisions in other jurisdictions, it is logical to assume (and the Anti-Discrimination Board does assume) that religious or ethno-religious groups would come within the protections afforded by the Anti-Discrimination Act 1977, including the racial vilification provisions. It may be that the Act should be amended to make this explicit, for the avoidance of doubt. The same behaviour which would give rise to a blasphemy prosecution would almost certainly trigger the racial vilification provisions as well. The Commission believes that these provisions are better designed to handle the problem in a modern democratic society, given: the non-discriminatory (indeed, the anti-discriminatory) nature of the provisions; 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.
Problems with the common law offence
4.49 Whatever the relative merits of the view that there should be some offence of blasphemy to protect against the scurrilous abuse of religious values, there are problems with the particular offence of blasphemy which is made part of the law of this State by s574 of the Crimes Act 1900 and the operation of the common law. These matters were canvassed more fully in Chapter 2, particularly under the heading “The Elements of the Offence”, and are summarised below.
Uncertainty over current status
4.50 The very existence of the common law blasphemy offence is under something of a cloud. The common law has itself developed a doctrine of desuetude, whereby an unwritten law may be “repealed”, effectively, through disuse. There has not been a criminal prosecution for blasphemy in New South Wales in this century, and the offence is often regarded as an anachronism, if not a “dead letter” as Lord Denning has suggested.49 It may be that the enactment of statutory provisions relating to blasphemy in 1883 (now s574 of the Crimes Act) and 1974 (s574A) has “revived” the offence, although these provisions do not alter the fundamental common law (rather than statutory) nature of the offence. The Commission believes that it is likely that the courts would, if asked, hold that the common law offence of blasphemy is still known at law in New South Wales. However, it is most unsatisfactory that so much uncertainty surrounds the existence of an offence, the breach of which could result in the imposition of a very substantial penalty.
Limitation to Christianity
4.51 As discussed in the preceding chapters, the English common law offence of blasphemy is limited to scurrilous abuse of the tenets of the Church of England as by law established. Coverage may extend to other Christian denominations insofar as their tenets coincide with those of the Church of England,50 but even making this determination would involve the civilian courts in a difficult and inappropriate examination of the comparative doctrines of the respective Christian churches. In any event, the courts have felt unable or unwilling to extend the law to cover other, non-Christian religions, despite the basic shift in social, political and legal assumptions about discrimination and dissent.51
4.52 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 Government policies. The discriminatory impact of the offence has been well publicised recently as a result of the Salman Rushdie affair, and it is no longer sensible to ignore its operation. Among the important functions of a Law Reform Commission are “eliminating defects and anachronisms in the law”, “repealing obsolete or unnecessary enactments”, and “modernising the law by bringing it into accord with current conditions”.52
Uncertainty over the elements of the offence
4.53 Liability for serious criminal offences in Australia - as judged by the subject-matter, sentence and stigma involved - normally requires strict proof of subjective fault. In England, the House of Lords in Whitehouse v Lemon, however, decided by a bare majority that the only intention that the Crown need prove is the intention to publish the material in question and that no further or specific intention (to publish the material knowing it to be scurrilous or tending to a breach of the peace) is required.53 The Commission considers that it is unlikely that the courts here would follow this precedent, and there are numerous recent instances of the Australian courts departing from the English law in the area of criminal responsibility. Again, however, it is unsatisfactory that an essential element of a serious offence is not clear and could not be determined with certainty until after a conviction and appeal. There is a similar problem with the construction of the breach of the peace aspect of the offence under s574 (and the common law), as discussed above in Chapter 2.54
Sentencing and procedure
4.54 There are two further issues worthy of consideration in relation to the prosecution of the offence of blasphemy, in common with other non-statutory offences. First, the offence must be tried upon indictment before a Supreme Court judge and jury, based on the inherent jurisdiction of that court, since summary jurisdiction is entirely a statutory creation. In the case of blasphemy, this may actually be a very good thing for two reasons. The definition involves an application of general concepts such as “offensiveness” and “indecency”. It is quintessentially the role of the jury in our system of criminal justice to reflect the common sense and understanding of the community, and juries are in a better position to determine this than a single judicial officer. Also, the much greater trouble and expense of prosecuting an indictable offence would tend to discourage vexatious or tenuous actions as a practical matter. It would not be a useful development for the police or private citizens to view blasphemy charges as ready alternatives to prosecution for offensive behaviour.
4.55 However, it should be said that there is a countervailing trend towards the expansion of summary jurisdiction through, among other means, the transformation of indictable offences into “hybrid” offences which permit the summary hearing of matters with (or sometimes without) the consent of the accused. The advantages for an accused of summary proceedings are speedier hearings and lower maximum penalties. In New South Wales, the Crimes (Amendment) Act 1988 expressly abolished the common law offences of riot, rout and affray and replaced them with similar statutory offences (ss 93B and 93C) which are triable upon indictment but may be heard summarily before a magistrate with the consent of the accused.55
4.56 The second problem is that the sentence for a common law offence is not, by definition, limited by statute, so that the penalty is said to be “at large”. In theory, this means that a person convicted of blasphemy could receive a sentence of anything up to life imprisonment.
4.57 At common law, blasphemy was classified as a misdemeanour rather than a felony, so this would probably have some restraining effect in practice. In Whitehouse v Lemon, the only actual convictions for blasphemy in recent times, a suspended sentence of nine months’ imprisonment suspended for 18 months was imposed on the editor by the trial judge, but this was quashed by the Court of Appeal. Fines of £500 imposed on the editor and £1000 on the company (Gay News Ltd) were upheld.56 These sentences contrast with the expressions of “revulsion”57 from the members of the Court of Appeal and the House of Lords over the published material, which contained graphic descriptions of Jesus Christ engaged in various homosexual practices, and suggest that the English courts may have had in mind a notional maximum penalty something like the two year’ gaol available under the Canadian Criminal Code for a “worst case” offence.
Provisional conclusion
4.58 At this stage, without the benefit of consultation with the community, the Commission does not find this option attractive. Public order is clearly capable of being preserved in New South Wales without the use of the common law crime of blasphemy, which has not been utilised here in this century. The general criminal law, including offences particularly geared to incitement and offensive behaviour, covers this area adequately, and there are also offences directly applicable to the ethno-religious context (and civil procedures for conciliation and the award of damages) which are less controversial, are better defined, have more appropriate penalty structures, are less intrusive upon personal liberty, and do not discriminate against Australians who are not of the Christian faith.
OPTION TWO: “PROGRESSIVE CODIFICATION” OF A BLASPHEMY OFFENCE
4.59 If it is thought that there is justification for an offence of blasphemy, although the present offence is too uncertain and unsatisfactory, it may be possible to codify a modified blasphemy offence which meets all or most of the modern objections. The issues to be resolved are discussed below.
The mental element
4.60 In Chapter 2 and in the preceding Option, we discussed the uncertainty of the mental element, or mens rea, for common law blasphemy. In England, the majority House of Lords in Whitehouse v Lemon58 focussed on the public order aspect of blasphemy and decided that it was not an offence requiring Crown proof of further or specific intent. In Chapter 2, we argued that the Australian courts would be unlikely to reach the same conclusion, given the differing approach here to the concept of subjective fault and the High Court’s guidelines for statutory interpretation which emerge from the judgment in He Kaw Teh.59 As a matter of law and policy, a codified blasphemy offence should incorporate a concept of subjective fault. The Crown should be required to prove beyond reasonable doubt that the accused intentionally published material about religion with the intention of causing grave offence to members of the community, or at least that he or she realised that the publication created a substantial risk of causing grave offence.
Protection of bona fide debate
4.61 Any new blasphemy offence should contain an express provision removing liability (with the onus of proof on the Crown to disprove or “negative” this element) for words or matter which are published for the purposes of bona fide discussion or debate. Section 574 of the Crimes Act 1900 (NSW) already removes liability for a publication “by way of argument or statement”. Section 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW) shields from racial vilification law communications made “reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate”.
“Breach of the peace” requirement clarified
4.62 The common law and s574 both refer to the element of a “tendency to cause a breach of the peace”. In Chapter 2, we outline60d the fact that this concept is not certain, at least in its application to the law of blasphemy. One view, based on the origins and basis of the offence, is that the requirement refers to the endangering of public peace and the fabric of society. The other view is that “breach of the peace” should be used in its traditional, far more limited sense, which refers only to the possibility of causing harm to any person or property. In the trial of Lemon, the trial judge’s direction to the jury employed the more limited meaning, referring to “the possibility, not a probability” that any reader “could, not would” be provoked into committing a breach of the peace. The Court of Appeal and the House of Lords both applauded the direction.
4.63 The Commission believes that the essence of the law of blasphemy is that the behaviour complained of does more than injure private feelings but rather strikes at the society and causes a real danger of public disorder. We believe that a codified offence should clarify that the Crown must prove not only that the accused person had the requisite intention to cause grave offence to others, but also that the accused intended thereby to foment public disorder or was aware that such disorder was likely.
Extension to other religions
4.64 The discriminatory nature of the existing common law blasphemy offence is one of the major concerns of those opposed to blasphemy laws, and is perhaps the major concern of those who, in common with Lord Scarman, see a modern role for the offence if this negative aspect can be remedied. However, while it is easy to recommend that the law be extended to encompass other religions, it is far more difficult to fashion a sensible provision which would achieve this aim.
4.65 The main problem lies in defining with the necessary precision just what constitutes a “religion”. In considering s116 of the Constitution, which provides that the “Commonwealth shall not make any law for establishing any religion”, the High Court of Australia has said that:
it would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world .... what is religion to one is superstition to another.61
4.66 Precision is necessary because it would be unfair to bring a person to trial for blasphemy in circumstances in which it could not have been confidently predicted in advance that the criticism made referred to a “religion”, rather than, say, a political group or a business association or a movement or a sect. To cast the definition too narrowly62 or too inflexibly63 would unfairly deny coverage to some bona fide religious groups. To make the definition too inclusive would be far more dangerous, however, as it would further impinge upon free speech. As with an overly broad defamation law, an overly broad blasphemy law would stifle public scrutiny and debate about the activities of some groups, even where the disclosure of unsavoury practices would be in the public interest. It is not hard to imagine that some groups would be formed deliberately with an eye to the definition of religion, affecting the familiar trappings of religion precisely to suppress criticism. The experience already exists of groups contriving religious status for the purpose of gaining taxation and other financial advantages.
4.67 The Law Commission of England and Wales has struggled with the possibilities of directly or indirectly defining “religion” for the purposes of extending the law of blasphemy. The Law Commission concluded that a single definition was impossible to formulate which did not offend against one or the other of the competing concerns mentioned in the preceding paragraph, and leaving the matter for the courts to determine on a case-by-case basis was even less satisfactory. Definition by reference to other existing legal criteria, such as the law of charitable trusts, or the list of premises used for religious purposes compiled by the Registrar General also proved to be unsatisfactory.64 Reference to charities registered for the advancement of religion is unhelpful, for example, since the “constitutional possession of religious doctrine by a society is not sufficient in itself to make that society charitable.”65 The law of charitable trusts is not concerned with defining religion; in a graphic example, a community of cloistered Roman Catholic nuns was held to be non-charitable.66
4.68 The legislation could attempt a comprehensive list of all religions protected by the extended offence,67 but the problems involved in this approach seem insuperable. Not only would the contents of the list be highly controversial, but as new religious sects spring up, and old groups merge or disappear, the list would quickly become outdated. The questions of who is to decide and on what criteria would provoke heated debate, given the understandable interest of all groups who may be vying for this status. Omissions, deliberate or accidental, and indeed some inclusions, would provoke far more tension and outrage than the offence would be designed to prevent, leaving aside that the offence has not enforced in New South Wales in this century.
4.69 The Law Commission of England and Wales concluded that it was “impossible to define `religion’ or `religious’ satisfactorily for this purpose” and that this was sufficient reason alone to abandon the offence of blasphemy.68 At this stage, this Commission agrees, but would be interested in receiving submissions on this point.
Specification of a penalty
4.70 Another of the serious concerns about the offence of blasphemy is the absence of any statutory guidance about sentencing convicted persons (in particular, a specified maximum). As a common law crime, the sentence is “at large”, giving the trial judge the discretion to impose any sentence between, say, a good behaviour bond and imprisonment for life. (A side effect of this uncertain position is that an accused person would be loathe ever to plead guilty, since it would be impossible to predict the degree or kind of penalty likely to be imposed.)
4.71 Almost all of the other old common law offences have now been given some statutory form in New South Wales.69 Often this involves no more than mentioning the offence and specifying the maximum penalty, leaving the common law to flesh out the elements of the defence, the applicable defences, and so on. For example, common assault is now an offence under s61 of the Crimes Act 1900 (NSW) with a maximum penalty of two year’s imprisonment; larceny is an offence under s117, carrying a maximum of five years.
4.72 The Commission believes that if blasphemy is retained as an offence a maximum penalty should be fixed. In New Zealand, Western Samoa, India, Fiji, and the Solomon Islands the maximum is one year’s imprisonment; in Canada, the maximum is two years.70 In Whitehouse v Lemon, the modern English precedent, the trial judge gave the editor a nine months suspended sentence with a fine of £500 and the publishing company received a fine of £1000. On appeal, the suspended sentence was quashed, leaving in place only the fines.71 In consideration of the above, and having regard to the penalties for other similar public order offences, the Commission believes that a penalty of one year’s imprisonment would be the most that could be justified.
Indictable process requiring consent of the Attorney General or the DPP
4.73 A possible improvement to the law in this area would be to provide that prosecutions shall not be commenced without the approval in writing of the Attorney General or the Director of Public Prosecutions. This requirement would help guard against harassment and frivolous or vexatious litigation. This is the position under the statutory blasphemy offences in Tasmania, New Zealand and Western Samoa.72 In New South Wales, proceedings for somewhat analogous offence of criminal defamation now require the consent of the Attorney General or the Director of Public Prosecutions.73
4.74 The Commission believes, on balance, that if blasphemy was to be retained in some form, a consent requirement should be imposed in order to limit its use. However, this would not in itself remedy the other defects in the definition of the law which we have identified above, and it would import other problems. As the Law Commission of England and Wales has stated:
Where, as in blasphemy, there is uncertainty as to the ambit of the offence, provision of a requirement of executive consent would in practical terms go a long way towards deciding at what point the law should impose criminal sanctions; and in this particular offence, this in substance would mean deciding what limits are to be set to freedom of expression. This in our view is quite unacceptable... .74
The Law Commission also recalled the remarks of Lord Reid in a similar context:
A bad law is not defensible on the ground that it will be judiciously administered.75
4.75 The Commission believes that if the offence of blasphemy is retained in some form, it should remain an indictable offence only, on the basis that: (1) the key issues of fact should be determined by a jury; (2) as a practical matter, frivolous or vexatious prosecutions would be discouraged; and (3) the stigma attaching to conviction requires all of the procedural safeguards and presumptions found in the common law (superior) courts.
Provisional conclusion
4.76 All of the general policy concerns that the Commission expressed above in relation to Option One (retention)76 apply equally to this proposal. We believe that the criminal law and anti-discrimination law in this State already adequately cover the same ground as blasphemy with fewer problems and anomalies. In Option Two, we have endeavoured to remedy the legal concerns about the existing offence of blasphemy. The resulting statutory offence would be far preferable to the existing common law offence, but serious problems remain - particularly in the definition of “religion” for these purposes. On balance, therefore, and without the benefit of submissions, the Commission does not favour Option Two, but rates it more highly than Option One.
OPTION THREE: POSSIBLE REPLACEMENT OFFENCE(S)
4.77 If it is accepted that blasphemy - in its common law form or as progressively codified above - should no longer be part of the law, there may be cause for the development of some new offences which replace blasphemy.
Insulting or outraging religious feelings
4.78 The emphasis of the modern-day application of blasphemy seems to have shifted from the right of society to prosecute scurrilous attacks on Church and State, to the protection of religious sensibilities from serious and gratuitous offence. The judgments of the Law Lords in Whitehouse v Lemon bear out this change in approach. Lord Russell held that the single ingredient of the offence was the publication of matter “which will in fact shock and outrage the feelings of ordinary Christians”77. Lord Scarman described the “interference with our religious feelings” as the essence of the offence,78 and went further to state that the religious feelings of all persons deserved respect and protection from offensive abuse. The English Law Commission felt that the protection of religious feelings was the “most decisive - albeit far from decisive” justification for the imposition of criminal penalties.79
4.79 Given the serious problems involved in retaining or reforming blasphemy, a new offence could be created, the essence of which would be the criminalisation of behaviour which is offensive to the religious convictions of others. However, many of the same difficulties will arise: how to frame a satisfactory definition of “religion” or “religious” which would be neither so narrow as to exclude from its ambit some groups deserving of protection, or so wide as to result in the stifling of free speech and counter-productive litigation.
4.80 A number of jurisdictions outside of Australia have offences which punish the intentional wounding or outraging of religious feelings. In Chapter 3, we set out ss 295A and 298 of the Indian Penal Code,80 which are the models for similar provisions in Fiji and the Solomon Islands. These provisions - drafted by Macaulay in the mid-19th century, well in advance of the development of race relations or anti-discrimination laws - prohibit doing any act with the intention of wounding or outraging the religious feelings of any person.
4.81 In New South Wales, however, the Summary Offences Act 1988 (NSW), s4, and the Inclosed Lands Protection Act (NSW) 1901, s4A, already cover offensive conduct and offensive language in public places or in private, and the Anti-Discrimination Act 1977 already covers racial vilification. A number of other similar offences also may be found in the statute books governing behaviour in specific situations, such as on the railways. The creation of a new offence specifically geared to the protection of religious feelings would add little to the existing law while creating fresh problems of definition and application. The Law Commission of England and Wales also has rejected this approach for similar reasons, concluding with these remarks with which we agree:
this possible offence, however drafted, would either be unavoidably wide or would raise substantial difficulties in practice. Furthermore, we believe its availability would not be conducive to the interests of a society which is at the same time both multi-religious and secular, and would be wasteful of the limited resources possessed by the community for the control of crime.81
Incitement of hatred or violence on religious grounds
4.82 An offence expressly prohibiting the incitement of hatred on the basis of religious beliefs would cover the most extreme examples of blasphemy, and would draw together both the idea that blasphemy exists to prevent breaches of the peace, and the right of an individual not to be exposed to hatred and violence. There are a number of possible models that could guide the formulation of a new offence.
4.83 The “Hate Propaganda” provisions of the Canadian Criminal Code, introduced in 1970, have been referred to above.82 Section 319 creates offences of making a public statement which (1) “incites hatred against any identifiable group” in a manner likely to lead to a breach of the peace; or (2) “wilfully promotes hatred against any identifiable group”. Section 319(3) exempts statements which are true or made in good faith for the purposes of public debate or discussion.
4.84 In 1986 the Law Reform Commission of Canada considered the role of these hatred offences “to affirm some principles of international law and to denounce unequivocally certain racist practices in our society”.83 The Commission recognised that the mere fact that certain conduct had been outlawed in the past was not sufficient justification for the creation of new offences, or the retention of old crimes. It must be shown that the State has a proper interest in controlling words within the context of modern society.84 In the search for a balance between the freedom of expression and the freedom from oppression, the Canadian Law Reform Commission stated that:
Promoting enmity is clearly dysfunctional to society. It stirs up hatred among social groups. It can even lay the foundation for physical attacks upon persons or property. Preventing such harm justifies the use of the criminal law.85
4.85 The Canadian Commission acknowledged that retention of these offences was desirable, but suggested certain changes to their definitions.86 In particular, it was recommended that s319(1) should be re-defined to include a specific element of intention, and to replace the “breach of the peace” element with “likely to cause harm to a person or damage to property”. It was proposed to re-define s319(2) to include a requirement of intention and more clearly to limit the offence to public acts. The definition of “identifiable group” also was proposed to be widened to include groups identifiable on the basis of national origin, sex, age or mental or physical disability, as well as the existing criteria of race, ethnic origins, colour and religion. According to that Commission, this expanded definition would bring the Code into line with the Canadian Charter of Rights and Freedoms, which is part of the new Canadian Constitution.87 The question of whether to require the Attorney General’s consent to a prosecution was reserved for later consideration, and subsequently rejected.88
4.86 The Australian Law Reform Commission (ALRC) recently has considered the merits of creating new offences concerned with racist violence.89 The ALRC noted that the general law, although providing protection against violence and vilification, does not punish racist conduct because it is racist.90 The ALRC proposed the introduction of a new offence of “incitement to racist violence”91 in the following terms:
4.87 We see merit in the creation of an offence of incitement to racist violence in similar term in New South Wales, with two provisos. First, it must be clear that a Beatty v Gillbanks or “heckler’s veto” situation is not caught by the statute.92 That is, lawful speech should not be made unlawful by the actions of a hostile audience which turns against the speaker conveying an unpopular message. In Beatty v Gillbanks,93 the leaders of a Salvation Army march were arrested by the police for participating in an unlawful assembly which disturbed the peace. The Salvation Army’s procession was otherwise quite lawful, but the response of the “Skeleton Army”, a “disorderly and riotous mob of more than 2000” who were accustomed to gathering to accost the marchers, was considered sufficient to arrest the march’s leaders on the grounds that it was foreseeable that their actions would provoke a disturbance which might endanger life, property and public peace. The convictions were quashed by a court which saw as the central consideration the fact that the Salvation Army was pursuing a lawful object which should not be rendered unlawful by the improprieties of others:
The disturbances were caused by other people antagonistic to the appellants, and ... no acts of violence were committed by them.... What has happened here is that an unlawful organisation has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition.94
The wording of the ALRC’s proposed offence, although somewhat inelegant, would probably avoid this problem by reference to the “third person”, but a better form of words may be possible.
4.88 The second proviso is that the offence should be clearly expressed as one of further or specific intent, requiring proof of subjective fault. That is, the speaker must be shown to have intended racist violence to result from his or her words, or at least have been aware of the likelihood of this eventuating (recklessness). Incitement to violence is already a common law crime in New South Wales, and the Commission believes that the specification and codification of appropriate offences within the incitement area is useful, so long as these offences are carefully drawn. We do see this proposed offence as a refinement upon the law of incitement, however, and not a replacement for common law blasphemy in particular.
4.89 The ALRC left open the question of whether a separate offence prohibiting incitement to racial hatred (rather than violence) should be created. The ALRC listed the powerful arguments they believed to exist against the creation of such an offence: the limiting of freedom of expression in circumstances where there was no proven threat to persons or property; the difficulties in expressing the precise standard of conduct that would fall foul of the new offence; and the omission of other grounds, such as the incitement of hatred based on sexual orientation, mental or physical disability, and so on.
4.90 This Commission agrees that there are many more problems with laws prohibiting incitement to hatred than those proscribing incitement to violence. In any event, in New South Wales there is already suitable provision made in the racial vilification provisions of the Anti-Discrimination Act 1977 for the handling of racial vilification through the Anti-Discrimination Board’s complaints procedures and the handling of serious racial vilification through the criminal process (with the consent of the Attorney General).95
Summary
4.91 Offences should not be created without good reason: “all punishment is mischief; all punishment in itself is evil.”96 There should be a clearly identifiable need for the intervention of the criminal law, and the prohibited conduct should be capable of accurate definition so as not to be unduly repressive to the rights and freedoms of all individuals. The ancient offence of blasphemy fails to meet these criteria, and replacement criminal offences which rely on the “racial hatred” concept also suffer from imprecision. The Commission does see merit in the creation of an offence of incitement to racial violence, using a broadly inclusive definition of “race”. This is not necessarily seen as a direct replacement for the law of blasphemy, which was developed to meet other concerns.
OPTION FOUR: ABOLITION WITHOUT SPECIFIC REPLACEMENT
4.92 It follows from what we have said in relation to the previous three options that the Commission provisionally favours the express abolition of the common law offence of blasphemy, without specific replacement. We would suggest in this connection, however, that for the avoidance of doubt the racial vilification provisions of the Anti-Discrimination Act 197797 be amended to explicitly include ethno-religious groups within the definition of “race”.
4.93 The Commission does not believe that abolition is a radical step. There have been no successful prosecutions for blasphemy in New South Wales this century, and it is exceedingly rare that such a charge is even considered. As the review in Chapter 3 indicates, there have been no prosecutions for blasphemy in Australia, Scotland, Ireland, Canada, New Zealand or other comparable jurisdictions for over 50 years, and every law reform commission which has considered the question has recommended abolition.
4.94 As discussed in para 4.91, the Commission is inclined towards the creation of an offence of incitement to racial violence, although we do not see this as a specific replacement for common law blasphemy, but rather as a “related matter” within the terms of reference.
FOOTNOTES
1 The Law Commission, Offences Against Religion and Public Worship (Working Paper No 79, 1981) paras 7.5-7.23, and (Report No 145, 1985) paras 2.10-2.42.
2 See para 2.8, above.
3 See R v Bradlaugh (1883) 15 Cox CC 217, and R v Ramsay and Foote (1883) 15 Cox CC 31.
4 Law Commission, WP No 79, at para 7.10.
5 Bowman v Secular Society [1917] AC 406, at 466, per Lord Sumner.
6 Law Commission, WP No 79, at para 7.10.
7 Whitehouse v Lemon [1979] AC 617, 634 per Lord Diplock.
8 This society, which included such leading members of the establishment as William Wilberforce and Thomas Bowdler, launched an “orgy of prosecutions” against Richard Carlile and his followers, landing some 150 people in prison between 1817 and 1824: J R Spencer, “Blasphemy: The Law Commission’s Working Paper” [1981] Crim LR 810, at 818.
9 See the discussion of Jones’ case in Chapter 2.
10 Law Commission, Report No 145, at para 2.36.
11 “Many of the evangelists of unbelief ... showed a compulsion to martyr themselves worthy of any primitive Christian”: Spencer, at 818; see also P Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia (2nd ed, 1974) 74.
12 [1917] AC 406, at 461.
13 R v Lemon [1979] QB 10, at 30 (Eng CA).
14 [1979] AC 617 (HL).
15 Law Commission, Report No 145, at para 2.36.
16 Spencer, at 814.
17 Hansard (HL) of the British Parliament, vol 389, col 318, 23 February 1978, in the debate on the Blasphemy (Abolition of Offence) Bill 1978.
18 Ibid, at col 290, per the Earl of Halsbury.
19 (1883) 15 Cox CC 217, at 230. According to one commentator, “what was novel in Coleridge’s judgement was ... his willingness to [take account of the character of an attack upon Christianity] in such a way that the object of the legal protection became Christian believers rather than Christian belief”: Jones, “Blasphemy, Offensiveness and Law” (1980) 10 British Journal of Political Science 129, at 134.
20 [1979] AC 617, at 658.
21 The following letter appeared in The Guardian, 10 October 1972, after the BBC had apologised to Mrs. Mary Whitehouse over allegedly blasphemous material featured in a BBC comedy: “Perhaps some of your readers can explain to me why the BBC should have to apologise to Mary Whitehouse and her Christian pressure group ... I do not subscribe to their myths and legends and am constantly outraged and aggravated by their religious programmes on both radio and television ... their opinions offend me deeply. Mary Whitehouse and the rest of the Festival of Light burn me up with aggravation. Yet I, and I expect thousands like me, can never expect an apology from the BBC.” Quoted in Tracey and Morrison, Whitehouse (1979) 114.
22 See the Defamation Act 1974 (NSW).
23 Indecent Articles and Classified Publications Act 1975 (NSW).
24 See the Broadcasting Act 1942 (Cth), s118.
25 For example, under the Independent Commission Against Corruption Act 1988 (NSW) s8(1)(d), it is “corrupt conduct” for a public official or former official to “misuse ... information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit”.
26 Criminal Law Revision Committee, Offences against the Person (14th Report, 1980) paras 179-180.
27 Under s61. The maximum for assault on a police officer in the execution of duty under s58 was raised in 1988 from two years to five. Assault on a person engaged in preserving a shipwreck draws a maximum of seven years under s57.
28 The Toleration Act only dealt with other Christian denominations, such as the Methodists.
29 Hawkins’ Pleas of the Crown 1716-1721 (1973) c63, s23.
30 R v Parry (1686) Trem PC 239; Wilson v Greaves (1757) 1 Burr 240.
31 Hutchins v Denziloe (1792) 1 Hag Con 181.
32 R v Darling (1884) 5 NSWLR 405. Martin CJ, with whom the other members of the Court agreed, expressed the view in this case that Christianity was part of the law in New South Wales, but this view cannot stand in light of the judgments of the House of Lords in Bowman v Secular Society [1917] AC 406.
33 Ibid, at 410. See also R v Wroughton (1765) 3 Burr 1683; R v Hube (1792) Peake 180.
34 Brown, Neal, Farrier, Weisbrot, Criminal Laws (1990) 1003.
35 Public place is defined broadly in s3 of the Act. See also ibid, at 971-973, and Appeal of Camp [1975] 1 NSWLR 452, at 453.
36 Ibid, at 1003-1023.
37 R v Gibson [1990] 3 WLR 595: the prosecution need not prove a specific intention to outrage public decency.
38 See Glanville Williams, Textbook of Criminal Law (2nd ed, 1983) 439-445. Brown, Farrier, Neal and Weisbrot, at 1257; and B Fisse, Howard’s Criminal Law (5th ed, 1990) 381.
39 A corporation convicted under s20D is liable for a fine of up to 100 penalty units (approximately $10,000).
40 An earlier, unsuccessful attempt at enacting racial vilification legislation in New South Wales did not utilise the Act’s limited definition of “race”, preferring to use the concept of “minority group”, which was defined to include members of a group who are distinctive “because of their race or the possession in common of linguistic, religious, social or cultural features” and who are “numerically inferior to the rest of the population of New South Wales and in a non-dominant position”. See Brown, Farrier, Neal and Weisbrot, at 1005.
41 [1983] AC 548 (HL). Referred to by the High Court of Australia in Street v Queensland Bar Association (1989) 168 CLR 461, at 509-510, per Brennan J.
42 [1983] AC 548, at 562, per Lord Fraser of Tullybelton.
43 Ibid, at 555. See Clayton v Ramsden [1943] AC 320; In re Tuck’s Settlement Trusts [1978] Ch 49; and Seide v Gillette Industries Ltd [1980] IRLR 427.
44 [1983] 2 AC at 555.
45 [1979] 2 NZLR 531.
46 Ibid, at 543.
47 Commissioner for Racial Equality v Dutton [1989] QB 783.
48 Crown Suppliers (Property Services Agency) v Dawkins [1991] ICR 583.
49 Freedom Under the Law (Hamlyn Lectures, 1st series, 1949) 46.
50 See paras 2.31 and 2.42, above.
51 The first modification of the legislation against religious nonconformity was the Toleration Act 1689 (UK) affecting Protestant dissenters; Roman Catholics had to wait until the Roman Catholic Emancipation Act 1829 (UK) (adopted in New South Wales in 1830); Jews until the Religious Disabilities Act 1846 (UK).
52 Law Reform Commission Act 1967 (NSW) s10(1)(a).
53 [1979] AC 617. See paras 2.82-2.87, above.
54 See paras 2.62-2.73.
55 See the Crimes Act 1900 (NSW), s476(6)(d). Riot carries a maximum gaol term of 10 years under s93B and affray a maximum of 5 years under s93C, but if heard summarily the maximum penalty for each is two years.
56 R v Lemon [1979] QB 10, at 30: Roskill LJ, for the Court of Appeal simply stated that “We do not consider this an appropriate case for a prison sentence.”
57 See, eg, [1979] AC 617, at 656, per Lord Edmund-Davies.
58 [1979] AC 617.
59 (1985) 157 CLR 523 (HCA).
60 See paras 2.62 et seq.
61 Adelaide Company of Jehovah’s Witnesses Inc v the Commonwealth [1943] 67 CLR 116, at 123, per Latham CJ.
62 By limiting coverage to “major” religions, for example, or those with a large number of adherents. See the Law Commission, WP 79, at para 8.17.
63 By limiting coverage to “theistic” religions, for example, which would likely leave out Buddhism: “We must always remember that one of the chief religions of the world, Buddhism, has risen to great moral and intellectual heights without using the conception of God at all”. Quoted by Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v the Commonwealth [1943] 67 CLR 116, at 124. See also the Law Commission, WP 79, at para 8.18.
64 Law Commission, WP 79, at paras 8.18-8.20.
65 Hanbury, Modern Equity (9th ed, 1969) 262.
66 Gilmour v Coats [1949] AC 426: proof of public benefit is necessary to constitute a charity, and there was no evidence of such public benefit to be derived from the nuns’ devotional activity.
67 As a part of the legislation, in the form of a Schedule, for example, or perhaps as an order or regulation made pursuant to the legislation.
68 Law Commission, WP 79, at paras 8.22 and 9.2.
69 The Commission will soon be looking at those other purely common law offences which arguably still exist, as part of the new reference on Conspiracy and Common Law Crime.
70 See paras 3.45-3.46, above.
71 [1979] QB 10, at 30 (Eng CA).
72 See para 3.45, above.
73 Section 50(4) of the Defamation Act 1974 (NSW). See para 2.47, above.
74 Law Commission, WP 79, at para 6.10.
75 Knuller v DPP [1973] AC 435, at 458-459. This was said in the context of the offence of “outrage to public decency”.
76 See para 4.58, above.
77 [1979] AC 617, at 657.
78 Ibid, at 661.
79 Law Commission, Report No 145, at para 2.37. See also WP 79, at paras 7.12-7.21.
80 See paras 3.34-3.35, above.
81 Law Commission, Report No 145, at para 2.51.
82 See para 3.26, below.
83 Law Reform Commission of Canada, Hate Propaganda (WP 50, 1986) 7.
84 This is reminiscent of Lord Sumner’s words in Bowman v Secular Society with respect to blasphemy, that the application of rules should be varied “to the particular circumstances of our time”: [1917] AC 406, at 467 (HL).
85 Law Reform Commission of Canada, Hate Propaganda, at 31.
86 Ibid, at 40-41.
87 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, which is Sch B of the Canada Act 1982 (UK).
88 The Commission later recommended that the personal consent of the Attorney General should not be required prior to the prosecution of any crime: see Law Reform Commission of Canada, Controlling Criminal Prosecutions (WP 62, 1990) 67-69.
89 Australian Law Reform Commission, Multiculturalism: Criminal Law (DP 48, 1991) 40-45.
90 But see Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) and Criminal Code 1913 (WA) sections 76-80
91 An offence of racist violence was also proposed, but this is not discussed here; in the context of formulating an offence of incitement to hatred and/or violence we are concerned only with verbal assaults.
92 See para 2.71, above.
93 Beatty v Gillbanks (1882) 9 QBD 308
94 Ibid, at 314.
95 See paras 4.40 et seq, above.
96 Bentham, An Introduction to the Principles of Morals and Legislation (Oxford, Clarendon Press, 1879) 170
97 See para 4.40, above.
