Is blasphemy an offence under Australian law?

by The FindLaw Team

It may seem quaint for some to consider blasphemy as an actual offence, but in many countries it still is certainly the case, including England where it remains as a common law offence. So if you’re interested in finding out more about blasphemy, read on to learn about blasphemous libel.

Blasphemy and English law

As noted in the introduction, blasphemy remains a common law offence in England and in order to establish that blasphemous libel has been committed, it is considered sufficient if it is proven that the publication of the material was intentional, and the material published is blasphemous. Furthermore, subjective intention in relation to an accused is not required.

Perhaps the most notable recent example of blasphemy in England concerned Salman Rushdie’s book, Satanic Verses. A private prosecution was brought against Rushdie for blaspheming Allah in R v Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury [1991] 1 QB 429; [1991] 1 All ER 306; 91 Cr App R 393. It was ultimately held that the common law of blasphemy only protected Christianity, and extending blasphemy to cover other religions would be almost impossible due to the difficulty of setting sufficiently clear limits.

For any reader who may be interested, the last person to have been executed for the offence of blasphemy in Britain was Thomas Aikenhead in 1697.

Blasphemy laws in Australia

The law relating to blasphemous libel was tested in Victoria in Pell v Council of Trustees of National Gallery [1998] 2 VR 391; (1997) 96 A Crim R 575 where Harper J refused an injunction to stop the picture, “Piss Christ” from being publically exhibited. His Honour remarked (at 391; 578-579):

“Not only has Victoria never recognised an established church, but now s 116 of the Australian Constitution forbids the Commonwealth making any law for establishing any religion.

It may be, as the defendant submits, that the offence of publication of blasphemous libel has lapsed through desuetude... Nevertheless, if Lord Scarman is right, there may be a place in a pluralist society for retaining the offence – although if Lord Scarman is right, its rebirth as a law protecting much more than the Christian faith would be necessary part of the new order.

Not only may there be a place in a multicultural society for the offence of blasphemous libel of any recognised faith, but the ancient misdemeanour of that name may have survived transportation to the colonies... Moreover, by inserting s 469AA into the Crimes Act 1958 the Parliament of Victoria recognised the existence, or at least the possibility of the existence of the offence.”

Section 469AA of the Crimes Act 1958 (Vic) as referred to by Harper J states the following:

“AA Seizure and destruction of documents containing libel

    (1)     Upon the conviction of any person for—

        (a)     publishing a blasphemous libel; or

        (b)     publishing a seditious libel—

the Court by which such conviction is recorded may order the seizure and destruction of any documents proved to exist and to contain any such libel or to have been written, printed or published in breach of the said section.

    (2)     Any such order shall be carried into execution not earlier than thirty days from the making thereof or at such time as a court of competent jurisdiction may order.

    (3)     If the conviction is set aside on appeal, the order for seizure and destruction shall be ipso facto vacated.”

For further legislative context in relation to blasphemy in Australia, we can also look to s 574 of the Crimes Act 1900 (NSW) which states the following:

“574 Prosecutions for blasphemy

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.”




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