The law of Blasphemous Libel in New Zealand, Canada, some Australian states, and other jurisdictions, is based on English Common Law where “Blasphemy” and “Blasphemous Libel” were crimes punishable by unlimited fines, imprisonment, or other cruel and inhumane punishments. Unlike law that is created by legislation, Common Law is unwritten law that is created by the courts over time through a series of judgements. Common Law has no specified penalties or maximum limits on those penalties.
In the late 19th century the respected English jurist Sir James Fitzjames Stephen, who was a strong believer in English law, saw the need for the law to be expressed simply and clearly in a written code so that people could know what the law said and understand it. Stephen prepared a Criminal Code that became known as the “Stephen Code” that attempted to define crimes under Common Law in easily understood language and to attach fixed maximum punishments to the various crimes. The Stephen Code was revised by a commission in England in 1879. The Code dropped the crime of Blasphemy but retained the crime of Blasphemous Libel with safeguards to restrict and prevent the misuse of the law.
Despite attempts, the Stephen Code was never enacted in England, but variations of the Stephen Code that included the crime of Blasphemous Libel were enacted in a number of British Empire countries in the late 19th Century including Canada, New Zealand, and several Australian colonies. Canada passed a Criminal Code Act in 1892 and New Zealand in 1893. The New Zealand Criminal Code Act 1893 was subsequently replaced by the Crimes Act 1908 and that Act by the Crimes Act 1961. The New Zealand crime of Blasphemous Libel has remained essentially unchanged, apart from some modernisation of the wording, since the Criminal Code Act of 1893. The section on Blasphemous Libel became section 150 of the Crimes Act 1908 and is now section 123 of the Crimes Act 1961.
In New Zealand, section 9 of The Crimes Act 1961 restricted offences to New Zealand Acts and abolished the common law charges when it stated that:
“No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom”.
This meant that the only blasphemy charge that could be applied in New Zealand was the charge of Blasphemous Libel under section 123 of the Crimes Act 1961. Only one charge of Blasphemous Libel has ever been laid in New Zealand, using section 150 of the Crimes Act 1908, and the defendant was found not guilty.
Section 123 remains as a “Dead Letter Law” (unused law). Such laws should be repealed before they are misused.
The lawmakers and courts aware of the barbarous history of blasphemy law have quite correctly set a high threshold to prevent frivolous, vexatious, or over zealous use of the law of blasphemous libel.
However, there are always those who feel that the threshold should be lower so that anyone they see as daring to question their personal beliefs or shatter their illusions should be punished with fines or imprisonment as a deterrent to others, particularly the young. Remember that Socrates, who simply advocated asking questions and thought and reason, was tried and sentenced to death in 399 BCE for “corrupting the youth and impiety” when he had caused no real harm to anyone. Sometimes little changes. In New Zealand in 2015 parliament passed the Harmful Digital Communications Act that sought to protect the youth of the country from cyber bullying but included a de facto blasphemy law.
The New Zealand situation changed on the 2nd of July 2015 when the Harmful Digital Communications Act 2015 became law. This Act created an additional de facto blasphemy law moving New Zealand a step back toward the dark ages.
This law allows for imprisonment of up to 2 years or a fine of up to $50,000 for an individual or a fine of up to $200,000 for a body corporate.