What is blasphemy? And is it an offence in Australia?

by The FindLaw Team

Depending on a person’s point of view on a particular subject matter, blasphemy is often used as a blanket term against a person holding the opposite worldview as incorrect in the holding of their beliefs, or in other words, blasphemous. So for example, some might consider it ‘blasphemous’ for an Australian to make a negative comment about an Australian athlete at the upcoming Olympic games. What we’re trying to say is that the term gets bandied around a lot and has lost some of its currency; which leads us to the obvious questions of what is blasphemy? And is it an actual offence in Australia? Well…the topic is certainly interesting.

Blasphemy is a common law offence in England

Yes, you’ve read the sub-heading correctly: blasphemy is an offence under the common law in England, and in order to demonstrate that an offence of blasphemous libel has been committed, it must be proved that the publication was intentional and the material published was blasphemous, as stated in R v Lennon [1979] 1 AII ER 898; 68 Cr App R 381 (HL). However, what is interesting about the English blasphemy laws is that it was held that the common law of blasphemy only protected Christianity, and that the Court would not extend the protection to other religions after a private prosecution was initiated against Salman Rushdie for blasphemy in his book Satanic Verses in Lennon. The Court stated that it would be virtually impossible for decisions to set sufficient limits to the offence if it was to be extended to other faiths.

Is blasphemy an offence in Australia?

The concept of blasphemy in Australia was explored in Archbishop of Melbourne v Council of Trustees of National Gallery [1998] 2 VR 391; (1997) 96 A Crim R 575, which was a case where the Archbishop of the Catholic Archdiocese of Melbourne, George Pell, initiated proceedings against the Council of Trustees of the Gallery of Victoria (the Gallery) seeking an injunction restraining the Gallery from exhibiting a photograph by Andres Serrano entitled, ‘Piss Christ’. The Archbishop claimed that the public display of such work constituted the exhibiting or display of an indecent or obscene figure of representation that is contrary to s 17(1)(b) of the Summary Offences Act 1966 (VIC).

Harper J in the Supreme Court of Victoria said in regards to the matter:

“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 religion.

It may be, as the defendant submits, that the offence of publication of a blasphemous libel has lapsed through desuetude (Ed’s note: no longer in use). It does appear that only one prosecution has been instituted in Victoria this century, and that was withdrawn before the trial…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 a 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. Certainly, there is a body of judicial opinion to the effect that it has…Moreover, by inserting s 469AA into the Crimes Act 1958 (the Act) the Parliament of Victoria recognised the existence, or at least the possibility of the existence, of the offence.”

To give further context to the comments of Harper J, we can look to s 469AA of the Act in which his Honour made reference to, with the section stating:

“(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.”

So there you have it: blasphemy has the possibility to be an offence according to some legal scholars.



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