Blasphemy law in New Zealand

The publishing of any "blasphemous libel" is a crime in New Zealand under Section 123 of the Crimes Act 1961.[1] The Act specifies that prosecution may proceed only with the leave of the Attorney-General[2] and allows for imprisonment for up to one year.

Origin of New Zealand blasphemy law

The New Zealand offence of blasphemous libel originated in England with the common law offences of blasphemy and blasphemous libel. All English common law offences were received into New Zealand law in 1840. In 1893, the New Zealand Criminal Code Act 1893, based on the work of James Fitzjames Stephen and developments by George Burbidge in the Canadian Criminal Code, 1892, omitted the common law offence of blasphemy but retained the offence of blasphemous libel in section 133 with safeguards to prevent overuse and abuse of the law. Queensland followed seven years later with the Criminal Code Act 1899 (Qld) which abolished common law offences and omitted both blasphemy and blasphemous libel from the code. Sir Samuel Walker Griffith, who was responsible for the development of the Queensland code, stated that it did not include those provisions of English law which were “manifestly obsolete or inapplicable to Australia”.

The New Zealand Crimes Act 1908 replaced the Criminal Code Act 1893 and the 1908 Act was in turn replaced by the Crimes Act 1961. Section 133 on blasphemous libel in the New Zealand Criminal Code Act 1893 became Section 150 of the Crimes Act 1908 and then Section 123 of the Crimes Act 1961 with minor updating of the language. Section 6 of the 1893 Act and Section 5 of the 1908 Act abolished common law offences. Section 9 of the Crimes Act 1961 expanded Section 150 of the 1908 Act to abolished all common law offences including blasphemy and blasphemous libel and any possibility of convictions under any Act of the Parliament of England, Great Brittan, or the United Kingdom; removing any ambiguity regarding the continual existence of common law offences in New Zealand. Section 123 of the 1961 Act does not define blasphemous libel or indicate the religion to which the law applies, leaving this to the common law.

Religion to which the offences relate

In England, where the offences originated, the question was considered settled in 1838 by Gathercole's Case. Baron Charles Alderson, speaking for the court, declared that "A person may, without being liable to prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country".[3][4]

As New Zealand, and other states and territories within the Realm of New Zealand, have never had an established religion it is doubtful that the offences of blasphemy and blasphemous libel were received into New Zealand or that Section 123 of the Crimes Act 1961 can be applied in New Zealand.

The English blasphemy laws were also received into Australian law and the question of the religion to which the laws relate has been considered by Australian law commissions. Their findings are of direct relevance to New Zealand. In 1992, the Australian Law Reform Commission stated that "The law of blasphemy is an ancient common law offence constituted by the publication of material which provokes outrage in Christians by insulting, ridiculing or vilifying God, Christ or the Christian religion as practised in the Church of England".[5]

In 1994, the New South Wales Law Reform Commission added that "The common law offence of blasphemy applies only to scurrilous criticism of the fundamental tenets of the Church of England and other Christian denominations of coincident conviction. Such discrimination by the law in favour of a particular religion is itself an indicator of the need for review and possible reform."[6]

In 1998, the Australian Human Rights and Equal Opportunity Commission in a report titled Article 18 – Freedom of religion and belief made use of the following definition: "Blasphemy is an ancient English common law offence defined as a publication containing contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, the Bible or the formularies of the Church of England which are calculated to provoke outrage in the feelings of any sympathiser or believer in Christianity. A person who publishes any blasphemous document is guilty of publishing a blasphemous libel."[7][8]

Position of the Anglican church

The New Zealand law of blasphemous libel originated with the English common law offences of blasphemy and blasphemous libel that were intended to protect the tenets of the Church of England, but the Church of England no longer supports the retention of these laws. At a meeting in the chapel of the Houses of Parliament in early 2015, Justin Welby, Archbishop of Canterbury, said that Christians must stand up for religious freedom of atheists and Muslims as much as themselves and that he was opposed to all restrictions on freedom of speech concerning religion which did not constitute hate speech. He thanked the former MP Evan Harris, a humanist, for his efforts to abolish the blasphemy laws in the UK.[9]

Interviewed by Radio New Zealand on 9 May 2017, Philip Richardson, Bishop of Taranaki and Tikanga Pakeha Archbishop and Primate of the Anglican Church in Aotearoa, New Zealand and Polynesia, said that he found it surprising New Zealand still had a blasphemy law in place and said God did not need to be defended by a statute. "It is an archaic and unhelpful law and it should be repealed. Freedom of speech is a fundamental of democracy, and indeed as any parent knows, freedom is a consequence of love."[10]

Law Commission reports

The New Zealand Law Commission has not given close consideration to the abolition of New Zealand's blasphemy laws. Law Commissions in England, where the laws originated, and Australia have however considered the question and recommended the abolition of all blasphemy laws.

England

In England, the continued existence of the common law offences of blasphemy and blasphemous libel was controversial. In 1985 the Law Commission published a report on Criminal Law: Offences against Religious and Public Worship, that recommended the abolition of all blasphemy offences. The report noted that "there is no one agreed definition of blasphemy and blasphemous libel and that it would scarcely be practicable, even if it thought desirable, to amend the common law definition by statute". The authors added that "it is now clear that none of the arguments for retaining a law of blasphemy are sufficiently strong to support this view and each of them is outweighed by other considerations which persuade us that a law of blasphemy is not a necessary part of a criminal code. Moreover, we have no doubt that any replacement offence which might be devised would in practice prove to be unacceptably wide in ambit." The Commission concluded, "that the common law offences of blasphemy and blasphemous libel should be abolished without replacement".[11] These two offences were subsequently abolished in July 2008.

Australia

As Australian blasphemy law shares a common origin with New Zealand blasphemy law, Australian law commission reports are relevant to New Zealand.

In 1992, the Australian Law Reform Commission produced Report 57 on Multiculturalism and the Law which "considers the role of the common law offence of blasphemy in federal law". The Commission noted that as blasphemy is not specifically defined in any Australian legislation it must be assumed that the English common law definition of blasphemy applies.

The Commission considered Australia's international obligations under covenants and conventions to which Australia is a party: The International Covenant on Civil and Political Rights (ICCPR) guarantees freedom of thought, conscience and religion, freedom of expression, the enjoyment of one’s culture, the profession and practice of one’s religion and the use of one’s own language in community with other members of one’s ethnic and religious community; and parties to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), undertake to guarantee the right of everyone to equality before the law and equality in the enjoyment of the rights to freedom of thought, conscience and religion, freedom of opinion and expression, and freedom of peaceful assembly and association.

The commission noted that blasphemy law provides only limited protection as religious affiliations are many and diverse. Although most Australians describe themselves as Christian, a growing minority (more than 300,000 in 1986) are members of non-Christian religious faiths, particularly Islam, Buddhism and Judaism, and that nearly two million Australians do not subscribe to any religion. The offence of blasphemy, however, protects only the Christian religion, with specific reference to the rituals and doctrines of the Anglican Church. Offences that involve the common law of blasphemy apply only to material that vilifies Christianity. This is not consistent with Australia’s human rights obligations.

The commission proposed that all references to ‘blasphemous’ material in federal law should be removed. The commission reported that "it is argued that extending blasphemy law to cover all religions would raise serious difficulties in defining ‘religions’ and ‘gods’, would have grave consequences for freedom of speech and might contribute to religious conflict. On the other hand, removing all references to blasphemy in federal law would have the effect of removing an apparently preferential position of one religion and moving towards a situation of parity between religions in federal law. For this reason it should be done. In so far as blasphemy causes hurt to a person’s sensibilities, the existing provisions on offensive behaviour and other public order offences are sufficient." The report concluded with the recommendation that the criminal law be amended so that "all references to blasphemy in federal legislation should be removed".[5]

New South Wales

In 1994 the New South Wales Law Reform Commission released a report on blasphemy after considering the law in New South Wales, other Australian states and territories, other jurisdictions in the region, the history of the law, international developments, freedom of speech, and public submissions. After considering possible options, the Commission recommended that all blasphemy law be abolished without replacement. The Commission pointed out that every other law reform agency in Australia and in other common law countries which had considered the question had likewise recommended the abolition of the offence of blasphemy. The report with its conclusions and recommendation is equally applicable to other Australian states and territories.[6]

Prosecutions in New Zealand

To date the only prosecution for blasphemous libel in New Zealand has been the case of John Glover, publisher of the newspaper The Maoriland Worker in 1922.[12] The Crown laid a charge of blasphemous libel over the 12 October 1921 issue of The Maoriland Worker which included two poems by British poet Siegfried Sassoon.[13] The alleged blasphemy was the closing lines of Sassoon's poem 'Stand-to: Good Friday Morning':

O Jesus, send me a wound to-day,
And I'll believe in Your bread and wine,
And get my bloody old sins washed white!

The case was tried in the Supreme Court in 1922.[14] The jury returned a verdict of not guilty with a rider: "That similar publications of such literature be discouraged".[2][15]

In 1998, the Crown decided not to prosecute Te Papa museum for displaying Tania Kovats' Virgin in a Condom.[2][16] In 2006, the Crown decided not to pursue blasphemy charges against CanWest, a broadcaster, for airing an episode of South Park featuring a menstruating Virgin Mary statue.[2] Usually, such cases must be referred to the New Zealand Attorney-General before they can proceed. However, the Attorney-General usually refuses to pursue blasphemy prosecutions on the basis of free speech objections, as the right to free speech is protected within New Zealand's Bill of Rights Act 1990.

New Zealand blasphemy law and the United Nations

New Zealand signed the International Covenant on Civil and Political Rights (ICCPR) on 12 November 1968, ratified it on 28 December 1978 and it came into force on 28 March 1979. This covenant is binding on signatory countries. The UN Human Rights Committee adopted General Comment 34[17] in July 2011 that stated in paragraph 48 that "Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant … ".

New Zealand also signed the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on the 25 October 1966 and ratified it on 22 November 1972.[18] This Convention includes an individual complaints mechanism, effectively making it enforceable against its parties, and is monitored by the Committee on the Elimination of Racial Discrimination (CERD). Parties to ICERD undertake to guarantee the right of everyone to equality before the law and equality in the enjoyment of the rights to freedom of thought, conscience and religion, freedom of opinion and expression.

New Zealand laws that prohibit "blasphemous libel" and "denigration of religion" contravene international law, are discriminatory, and contravene New Zealand's obligations under the ICCPR and ICERD.[5]

Proposed repeal of law

In May 2017 an amendment to a Statutes Repeal Bill was tabled to repeal Section 123 of the Crimes Act.[19]

See also

References

  1. ↑ "Section 123 Blasphemous libel". Crimes Act 1961. Parliamentary Counsel Office.
  2. 1 2 3 4 Ahdar, Rex Tauati (2008). "The right to protection of religious feelings" (PDF). Otago Law Review. 11 (4): 629–656. Retrieved 5 December 2012.
  3. ↑ R v Gathercole (1838) 2 Lew CC 237 at 254, (1838) 168 ER 1140 at 1145
  4. ↑ Select Committee on Religious Offences in England and Wales First Report Appendix 3 Archived 30 September 2007 at the Wayback Machine., 2003
  5. 1 2 3 Australian Law Reform Commission report 57 – Multiculturalism and the Law, 1992 pdf version
  6. 1 2 NSW Law Reform Commission: REPORT 74 (1994) – BLASPHEMY
  7. ↑ Australian Human Rights and Equal Opportunity Commission report Article 18 – Freedom of religion and belief. pdf version
  8. ↑ This definition was approved in an obiter statement in Ogle v Strickland (1987) 71 ALR 4, per Justice Lockhart at page 52, who quoted the definition from Stephen's Digest of the Criminal Law 9th edition, 1950, page 163.
  9. ↑ The Telegraph 04 Feb 2015
  10. ↑ Radio New Zealand News ACT's attempt to repeal blasphemy law fails 9 May 2017
  11. ↑ The Law Commission No. 145 Criminal Law: Offences against Religion and Public Worship. HC 442 1984–85.
  12. ↑ Troughton, Geoffrey (November 2006). "The Maoriland Worker and Blasphemy in New Zealand". Labour History (91): 113–129. doi:10.2307/27516155. Archived from the original on 24 March 2012. Retrieved 18 March 2015.
  13. ↑ "Two War Poems". The Maoriland Worker. 12 (243): 1. 12 October 1921. Retrieved 18 March 2015.
  14. ↑ "Maoriland Worker". Hawera & Normanby Star. 23 February 1922.
  15. ↑ Hunt, Tom (13 May 2017). "Flashback: The day a New Zealander beat blasphemy charges". The Dominion Post. Retrieved 30 July 2017.
  16. ↑ "Blasphemy". Caslon Analytics. Archived from the original on 23 April 2013.
  17. ↑ UN Human Rights Committee General Comment 34, adopted July 2011
  18. ↑ United Nations Treaty Collection (ICERD) Archived 4 March 2016 at the Wayback Machine.
  19. ↑ "ACT's attempt to repeal blasphemy law fails". Radio New Zealand. 9 May 2017. Retrieved 15 May 2017.
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