Law-makers are notorious for their ability to forget to update or remove archaic laws that would likely cause a public riot if they were actually applied today. Various people and organisations over the years have spent a lot of time finding the most ridiculous of laws that people have simply forgotten exist: such as Direct Expose, which found that it is illegal to take photographs of rabbits between January and April in Wyoming without a permit. Apparently it is also illegal in Michigan for women to cut their hair without the permission of their husband (OK then…), and it is an offence to share your Netflix password in Tennessee (looks like it’ll have to be ‘Stan and Chill’ instead then).
In Australia these examples can be far less comical: Queensland had a higher age of consent for ‘sodomy’ (18) than other sexual acts (16) until last year, while abortion is still a crime in New South Wales and Queensland, despite recent attempts to remove this from criminal legislation in NSW. And, it turns out, blasphemy is still a crime in New South Wales, Victoria, South Australia, Tasmania, the Northern Territory, the ACT and Norfolk Island.
Blasphemy occurs when a person publishes or speaks words that offend or outrage religious sensibilities, and applies in Australia as a common law offence rather than being contained in criminal law legislation. In Australia however, that definition has been confined by the Federal Court to only the offending or outraging of Christian religious sensibilities, and no other religion. While blasphemy laws are rarely invoked in Western nations, an allegation of blasphemy was leveled recently in Ireland at Stephen Fry for his statement questioning why he should ‘respect a mean-minded, stupid god who creates a world so full of injustice and pain?’
Indeed, blasphemy laws still remain in over a quarter of countries in the world. What is most intriguing is that many people seem to think it no longer exists as a crime in Australia: including, you guessed it, our own law-makers. Following an alleged, later proven false, plan by Labor to extend section 18C of the Racial Discrimination Act to protect religious vilification, Liberal MP Tim Wilson mused that this would ‘turn Australia into Saudi Arabia, where people can be hauled before courts for criticising religion’. Nick Xenophon also responded by stating, ‘As a general principle I do not support the reintroduction of blasphemy laws in this country’. But these laws cannot be reintroduced, as they were never removed in the first place. While not explicitly part of any criminal codes in Australia, the common law offence of blasphemy has not yet been overruled by any Australian courts; the Supreme Court of Victoria had the option to in a 1997 blasphemy case involving then-Archbishop George Pell (yes, the same one), and instead appeared to reaffirm the existence of blasphemy by reference to judicial discourse and the Victorian Crimes Act. Twenty years later and we still haven’t had an opportunity to revisit this and the issue remains unresolved – THANKS, JUSTICE HARPER.
Of course, comparisons with s 18C are not inappropriate. Section 18C, as part of the broader racial anti-discrimination legal framework, protects people against racial vilification, making it an offence to do any act which reasonably offends, insults, humiliates or intimidates another person on the basis of their race, ethnicity, colour or nationality – quite controversially so, it must be said. Why, if we have such a law protecting racial vilification, should we not have a law protecting religious vilification? Well, first of all: we do, in some jurisdictions. In Victoria, Queensland, Tasmania and the ACT, legislation prohibits religious vilification. Of course, a valid criticism leveled at this is that the Commonwealth, Western Australia, South Australia, New South Wales and the Northern Territory do not have legislation prohibiting religious vilification, unlike racial vilification laws which are present in nearly all Australian jurisdictions. So perhaps this isn’t a fair comparison.
Instead, the stronger argument in response to those who might advocate for keeping our blasphemy prohibition at common law is that blasphemy is not the same as religious vilification or racial vilification. In Australia, blasphemy only applies to causing offence towards the Christian faith. Not to the Jewish faith, Muslim faith, or any other religions. This would be akin to applying our racial anti-vilification laws only to one ethnic group and no others. Ironically, a decision to apply blasphemy laws to a person who offends the Christian faith but not to a person who offends another faith may well breach religious anti-discrimination laws (present in every Australian jurisdiction, even though vilification laws are not), which prohibit discrimination against people based on their religion.
Even if the racial vs religious vilification argument is put aside, a secular nation should not maintain a law that explicitly promotes the personal beliefs of members of one religion over those of any other religion. The task of balancing the right to free speech with the harm that vilification can cause should be left to vilification provisions contained in our anti-discrimination laws and should apply indiscriminately across all religions, not confined only to Christianity. Indeed while racial vilification laws remain applicable across Australia (though that is not a guarantee…), it may be difficult to find rational arguments as to why religious vilification laws should not also be present across the country. The value of such vilification laws in general and their scope and breadth is a discussion for another time. What is clear is that, while there may not have been a prosecution for blasphemy in an Australian jurisdiction for many years, the fact it remains a part of our common law is a blight on Australian legal values, secularist or otherwise. If parliaments are unwilling to legislate to effect the removal of blasphemy from our common law, then perhaps it will be a task better left to the courts (though likely not in Cardinal Pell’s next trial).