Blasphemy law in New Zealand

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.

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".[5][6][7][8]

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 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".[9]

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."[10]

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."[11][12]

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.[13]

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".[14] 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."[15]

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.

The only prosecution for blasphemous libel in New Zealand before the 2019 repeal of section 123 of the Crimes Act 1961 was the case of John Glover, publisher of the newspaper The Maoriland Worker in 1922 for the publication of two poems by British poet Siegfried Sassoon, although the poems were widely available in other publications and bookstores at the time.[17] The Crown laid a charge of blasphemous libel over the 12 October 1921 issue of The Maoriland Worker which included the two poems.[18] 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, now known as the High Court, in 1922.[19] The jury returned a verdict of not guilty with a rider: "That similar publications of such literature be discouraged".[2][20] The Supreme Court of 1922 was established in 1841 but renamed the High Court in 1980 to allow for the establishment of a higher court known as the Supreme Court of New Zealand in 2004.

In 1998, the Crown decided not to prosecute Te Papa museum for displaying Tania Kovats' Virgin in a Condom and Sam Taylor-Wood's Wrecked, a contemporary photograph based on Leonardo da Vinci's, The Last Supper, which featured a topless woman at the centre of the table in place of Christ.[2][21] 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][22] The former section 123(4) of the Crimes Act 1961 required the leave of the Attorney-General before charges of blasphemous libel could proceed. The Attorney-General usually refused to pursue prosecutions on the basis of free speech objections as the right to free speech is protected by the New Zealand Bill of Rights Act 1990.

Apart from the use of Section 123 of the Crimes Act 1961, attempts have been made to censor films and television programmes considered blasphemous using broadcasting standards and film censorship legislation such as the Films, Videos, and Publications Classification Act 1993 and the Broadcasting Act 1989.

Correspondence on whether Monty Python's Life of Brian (1979) should be banned in New Zealand for blasphemy.

The British comedy film Monty Python's Life of Brian (1979) about a fictional Jewish man living at the same time and neighbourhood as Jesus Christ, generated significant international controversy and was banned in several countries including Ireland and Norway. Hundreds of letters were sent to the New Zealand Film Censor's Office to have the film banned in New Zealand as well on the grounds of it being 'blasphemous' against the Christian faith, but the Chief Censor of Films responded by stating that they had found no evidence of blasphemy or sacrilegiousness in the film.

In February 2006, the broadcaster CanWest screened the “Bloody Mary” episode of the South Park cartoon series featuring a menstruating Virgin Mary statue.[2] The following June, the Broadcasting Standards Authority responded to complaints by upholding CanWest's right to broadcast the episode finding no breach of the Television Code of Broadcasting Practice. The High Court, considering an appeal by Bishop Denis Browne, in his capacity as the President of the Catholic Bishops Conference, affirmed the Broadcasting Standards Authority's decision in July 2007.

Dismissing the appeal in the High Court, Justice Wild said that he was “not prepared to second-guess the weight that the Authority accorded to the right to freedom of expression, relative to the right to respect for religious beliefs” and was not prepared to accept that the Authority was wrong to hold that the episode did not breach the standard of good taste and decency. Justice Wild noted that the four members of the Authority were unanimous and that the Conference's sense of outrage was not shared by the wider community.

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 binds signatory countries. The UN Human Rights Committee adopted General Comment 34[23] 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.[24] 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 both the ICCPR and ICERD.[9]

In May 2017 an amendment to the omnibus Statutes Repeal Bill 2016 was tabled to repeal Section 123 of the Crimes Act 1961,[15] however, it was voted down by one vote on the basis that the matter should be considered separately from that bill in order to allow public submissions.[25] On the 1 February 2018, a private member's bill, "Crimes (Offence of Blasphemous Libel) Amendment Bill", was introduced to parliament. This Bill was withdrawn on 21 March 2018 following the introduction of a government-sponsored Crimes amendment Bill on the 19 March which superseded it.[26]

On 19 March 2018, Justice Minister Andrew Little introduced a "Crimes Amendment Bill" to update the Crimes Act 1961. The bill would repeal three provisions of the Crimes Act 1961 considered to be out of date and not representing contemporary New Zealand attitudes, including repeal of Section 123.[27] The bill passed the first reading on the 28 March and was referred to the Justice select committee. The select committee received submissions in support of repeal from the Ministry of Justice, the Human Rights Commission, the New Zealand Council of Civil Liberties, and other organisations and individuals, and opposing repeal from a small number of individuals. The committee reported back on the 28 September with the recommendation that repeal of Section 123 proceed without change. The Bill passed the second reading on the 11 December 2018, the Committee of the Whole House on the 20 February 2019, and the third reading on 5 March 2019 with the unanimous support of the House. It received the royal assent on the 11 March and came into force on the 12 March 2019 repealing Section 123 of the Crimes Act 1961.[4][28][29]

• Blasphemy in New Zealand