Blasphemy and Blasphemous Libel are not criminal offences under Australian federal law, but the de jure situation varies at the federal, state and territory level. English Common law offences and statute law were "received" into law in Australian states and territories, and have not been abolished or repealed in some states and territories. Prosecutions for blasphemy or blasphemous libel remain possible, but have not recently been enforced in any Australian jurisdiction.

The English common law offences of blasphemy and blasphemous libel and the Blasphemy Act 1697 carried over to the Australian colonies and "received" into state law remained extant following Federation in 1901 unless specifically abolished or repealed. The common-law offences were abolished totally in Queensland in 1899 and in Western Australia in 1913, when those jurisdictions adopted criminal codes that superseded and abolished the common law offences. Tasmania abolished both common law offences in 1924 but replaced them with Criminal Code offences, which were subsequently repealed in 2024.

In South Australia, Victoria, and the Northern Territory, the situation is not clear, as the local criminal codes do not include blasphemy or blasphemous libel as offences, but also do not specifically abolish the common-law offences. In a subsection, the Victoria Crimes Act recognises the common law offence of blasphemous libel. The Australian Capital Territory abolished the common law offence of Blasphemous Libel in 1996, but failed to abolish the common law offence of blasphemy. In New South Wales, the criminal codes mention the offences of blasphemy and blasphemous libel, but leave the definition of blasphemy and the penalty to the common law.

Origin of Australian blasphemy law When the Australian colonies were established, they received English common law that included the common law offences of blasphemy and blasphemous libel with the potential for substantial penalties. The exact date that the common law was received varies by jurisdiction. The common law offences remain in force until abolished by legislation and may yet exist in some jurisdictions.Law of Australia, Reception of English law

The Australian colonies also received the English Blasphemy Act 1697; long title "An Act for the more effectual suppressing of Blasphemy and Profaneness". This Act remains in force until repealed by legislation; it was repealed in Queensland in 1899, Western Australia in 1919, Tasmania in 1924, and the Commonwealth of Australia in 1995. It may still be in force in other states and territories.

Religion to which the offences relate In England where the common law 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".R v Gathercole (1838) 2 Lew CC 237 at 254, (1838) 168 ER 1140 at 1145Select Committee on Religious Offences in England and Wales First Report Appendix 3 , 2003 As Australia and Australian states and territories have no established religion it is doubtful that the common law offences of blasphemy and blasphemous libel apply in Australia.

In Australia 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".Australian Law Reform Commission report 57 – Multiculturalism and the Law, 1992 pdf version

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."NSW Law Reform Commission: REPORT 74 (1994) – BLASPHEMY

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.Australian Human Rights and Equal Opportunity Commission report Article 18 – Freedom of religion and belief. pdf versionThis 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, p. 163.

Blasphemy prosecutions in Australia

Prosecutions for blasphemy in Australia are rare and there have been few since 1919. As Australia has no established church, blasphemy offences that originated with English common law where they applied only to an established church may not be applicable to Australia, but there were some prosecutions and convictions.

Abolition and repeal of blasphemy law in Australia

Common law offences remain part of the common law of a jurisdiction until "abolished" by legislation or superseded by specific legislation that takes precedence over the common law offence. In jurisdictions with specific legislation, the legislation must be "repealed" to remove the offence. Jurisdictions, known as "common law jurisdictions" use common law exclusively. Other jurisdictions, known as "code jurisdictions", use a Criminal Code or Crimes Act with all common law abolished. Yet other jurisdictions are "mixed jurisdictions" as they have a mixture of both with a Criminal Code or Crimes Act and common law offences that have not been abolished. In Australia, the Commonwealth, Queensland, Tasmania, and Western Australia are code jurisdictions with all common law offences abolished. In code and mixed jurisdictions the common law may still define the offence and set the penalties.

All common law offences were abolished and replaced by a criminal code without replacing the common law offences of blasphemy and blasphemous libel with criminal code offences in Queensland in 1899, Western Australia in 1919, and the Commonwealth in 1995. Tasmania abolished the common law offences in 1924 but introduced blasphemy code offences with the Tasmanian Criminal Code Act 1924. In 1996, the Australian Capital Territory abolished the common law offence of blasphemous libel but not blasphemy.

Although the common law offences of blasphemy and blasphemous libel were abolished in England and Wales in 2008, they have not been abolished in Australia in South Australia, Victoria, New South Wales and Norfolk Island, and the Northern Territory, and blasphemy but not blasphemous libel remains as an offence in the Australian Capital Territory.

It has been suggested that in states and territories where blasphemy laws remain, the laws have become "dead letter" laws and the common law concept of desuetude may apply, whereby an offence may lapse through prolonged disuse. However, British precedents indicate that desuetude has not applied since the Middle Ages and that common law offences must be abolished by legislation. After a long period of disuse, the English common law offences of blasphemy and blasphemous libel were declared to be dead letter laws by Lord Denning in 1949, but in 1977 in the case Whitehouse v Lemon, the House of Lords held that they were not dead letter laws.Whitehouse v Lemon AC 617, House of Lords (UK). It requires further investigation or legal decisions to establish whether or not the common law offences of blasphemy and blasphemous libel are extant in Australian states and territories where they have not been abolished or replaced by legislation.

In 1994, the New South Wales Law Reform Commission recommended that all blasphemy offences be abolished without replacement. The Commission pointed out, in a report that is equally applicable to other states and territories, that every other law reform agency in Australia and in other common law countries that had considered the question had also recommended the abolition of blasphemy offences.

Australian blasphemy law and the United Nations

Australia signed the International Covenant on Civil and Political Rights (ICCPR) on 18 December 1972. This covenant is binding on signatory countries. The UN Human Rights Committee adopted General Comment 34UN Human Rights Committee General Comment 34, adopted July 2011 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 … ".

Australia also signed the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on 13 October 1966 and ratified it on 30 September 1975.United Nations Treaty Collection (ICERD) 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.

Australian laws that prohibit blasphemy or blasphemous libel are discriminatory and contravene Australia's obligations under the ICCPR and ICERD and contravene international law.

Religion and hate speech

In some jurisdictions, such as Tasmania, Queensland, and Victoria, someone who is offended by someone else's attitude toward religion or toward one religion can seek redress under legislation which prohibits hate speech.

Position of the Anglican church The English common law offences of blasphemy and blasphemous libel received into Australian law were intended to protect the tenets of the Anglican church but the Anglican church no longer supports the retention of these laws. At a meeting in the chapel of the United Kingdom 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.The Telegraph 04 Feb 2015

Law Commission reports

England