THE REFERENCE

1.1 On 26 September 1991 the Commission was given a reference by the Attorney General, the Hon Peter Collins, QC, MP, to inquire into and report upon:

(a) whether the present law relating to the offence of blasphemy is adequate and appropriate to current conditions; and

(b) any related matter.

BACKGROUND TO THE REFERENCE

1.2 In 1990, the then Attorney General, the Hon JRA Dowd QC, MP, wrote to a number of the major churches seeking views on the need for a review of the law of blasphemy. The current reference follows on from that original inquiry, and with regard to the work currently being undertaken by the Australian Law Reform Commission in connection with its reference on Multiculturalism and the Law.

THE PROBLEMS

1.3 The Salman Rushdie affair in England revived interest in the crime of blasphemy, highlighting problems with the offence. A key issue is whether the offence is anachronistic in a modern society such as ours which is both multi-religious and secular, and which maintains a separation between Church and State. The common law offence of blasphemy applies only to scurrilous criticism of the fundamental tenets of the Christian religion - and perhaps only to the tenets of the Church of England and other Christian denominations whose tenets happen to coincide with these.¹ Such discrimination by the law in favour of or against particular religions is itself an indicator of the need for review and possible reform.

1.4 Another important concern is whether the blasphemy offence improperly impinges upon the fundamental human right of freedom of speech. The law imposes many restrictions and qualifications upon free speech and freedom of action ²- arguably too many. In the absence of a Constitutional right, there should be a strong presumption of free speech, with only the most compelling justification accepted for any limitation imposed by law.

1.5 Providing a contemporary definition of the offence of blasphemy in New South Wales presents a serious problem. The law of blasphemy was fashioned over the centuries by English courts, reflecting in different periods particular social tensions and the level of social and religious tolerance achieved. A study of English history raises the possibility that the offence of blasphemy was never really suited to the circumstances of New South Wales, established in 1788 as a penal colony and described (with some irony) by one commentator as the “most godless place under heaven.”³ There is a real question whether blasphemy still exists in the criminal law of New South Wales, even if it was “received” as law in colonial times, given the long period of disuse.⁴

1.6 Although the New South Wales Parliament has offered a degree of guidance in the Crimes Act 1900, ss 574-574A, resort to the case law is necessary to flesh out the elements of the offence (assuming it is still part of the law). However, there have been no reported judicial decisions in Australia, and only one case in New South Wales - in 1871 - uncovered by the noted author Peter Coleman as part of an investigation into the history of censorship in Australia. ⁵

1.7 The English judiciary recently has had occasion to consider the law of blasphemy again, but opinion is divided on some important issues.⁶ Further, it is questionable how much reliance can be placed upon the reasoning of the English courts, given that the common law of Australia now has departed markedly from the English law with respect to the basic principles of criminal responsibility. ⁷

1.8 In this Discussion Paper we also look at the way the offence of blasphemy has been dealt with in other common law legal systems, as well as consider a number of other related offences, such as disturbing religious worship ceremonies, assaults on officiating ministers, racial vilification and incitement. It may be that to the extent the offence of blasphemy is concerned with the prevention of civil disorder, this may be better achieved through the use of other existing public order offences or the creation of a new offence or offences.

PURPOSE OF THIS DISCUSSION PAPER

1.9 The purpose of this Discussion Paper is to promote informed public debate about the modern application in New South Wales of the ancient English common law offence of blasphemy, and to make some preliminary suggestions about possible avenues for reform.

1.10 In analysing the elements of the offence of blasphemy, the Commission has also raised more general questions about the role and development of the criminal law in this State, including refinement of the general principles of criminal responsibility, the need for codification of the common law, and the extent to which the exercise of basic freedoms should be qualified by the criminal law.

1.11 The views expressed in this Discussion Paper do not represent the Commission’s final recommendations and are made for the purpose of encouraging comments and suggestions from interested persons and groups. Such submissions will be of great assistance to the Commission in formulating its final Report to the Attorney General. No final decisions about recommendations will be made by the Commission until after the deadline for submissions has passed.

OUTLINE OF THE PAPER

1.12 In Chapter 2, we trace the development of the common law crime of blasphemy from its English, ecclesiastical origins to modern times, including a detailed analysis of the elements of the offence. Chapter 3 looks at the position in the other Australian jurisdictions (state, territory and federal) as well as in English-speaking jurisdictions overseas. Chapter 4 considers the options and arguments for reform, and offers some tentative proposals to focus the debate. The options considered are: (1) retention of the common law offence of blasphemy; (2) progressive codification of a new offence of blasphemy; (3) replacement of blasphemy with other public order offences; and (4) abolition of the offence of blasphemy without specific replacement.

FOOTNOTES

1 See paras 2.31, 2.42, and 4.51-4.52, below.

2 For example, the criminal laws on offensive, indecent and obscene behaviour, and the civil law of defamation.

3 I Breward, Australia: The Most Godless Place Under Heaven? (1988).

4 See paras 2.50-2.55 and 4.50, below.

5 Jones’ case, described by Peter Coleman in Obscenity, Blasphemy, Sedition: 100 years of Censorship in Australia (2nd ed, 1974) 66.

6 See paras 2.84-2.88, below.

7 See paras 2.77-2.107, below.