The publishing of any "blasphemous libel" was a crime in New Zealand under Section 123 of the Crimes Act 1961 which allowed for imprisonment for up to one year. However, Section 123 protected all publications and opinions on any religious subject expressed in good faith and decent language against prosecution and specified that prosecution may proceed only with the leave of the attorney-general.
On 5 March 2019, Parliament unanimously passed the Crimes Amendment Bill, which repealed Section 123 of the Crimes Act. The bill received the Royal Assent on 11 March 2019 and came into force the following day.
Origin of New Zealand blasphemy law In 1840, New Zealand received into law all English common law offences, including the common law offences of blasphemy and blasphemous libel, and the English Blasphemy Act 1697, titled "An Act for the more effectual suppressing of Blasphemy and Profaneness".
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based on the work of James Fitzjames Stephen and developments by George Burbidge in the Canadian Criminal Code, 1892, repealed specific Acts of the Westminster parliament and abolished all common law offences but replaced some offences from the repealed Acts and common law with code offences. The Code repealed the Blasphemy Act 1697 and abolished the common law offences of blasphemy and blasphemous libel but replaced the common law offence of blasphemous libel with section 133 of the Code, with safeguards to prevent overuse and abuse of the law.
Queensland followed New Zealand seven years later with the Criminal Code Act 1899 (Qld) which repealed the Blasphemy Act 1697 and abolished both common law offences, and omitted both blasphemy and blasphemous libel from the code.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Section 6 of the 1893 Act and Section 5 of the 1908 Act abolished common law offences and other offences by repealed Acts of the Westminster parliament. Section 9 of the Crimes Act 1961 expanded Section 150 of the 1908 Act to abolish all common law offences, including blasphemy and blasphemous libel and any possibility of convictions under any Act of the Parliament of England, Great Britain, or the United Kingdom; removing any ambiguity regarding the continual existence of common law or other offences in New Zealand. However, Section 123 of the 1961 Act did not define blasphemous libel or indicate the religion to which the law applied, 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".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
It might, therefore, be assumed that if the laws of blasphemy and blasphemous libel ever applied in New Zealand they applied only to the Church of England. However, 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 common law offences of blasphemy and blasphemous libel were received into New Zealand law or could be enforced in New Zealand, or that Section 123 of the Crimes Act 1961 could 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".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, page 163.
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, either in England or New Zealand.
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.
Interviewed by The Dominion Post on 8 May 2017, Anglican Archbishop Philip Richardson said the law against blasphemous libel was pointless, saying "My view is, God's bigger than needing to be defended by the Crimes Act". Richardson, known as 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. In a different interview he added: "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."
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".The Law Commission No. 145 Criminal Law: Offences against Religion and Public Worship. HC 442 1984–85. 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.