New Zealand’s law on Blasphemous Libel is given by section 123 of the Crimes Act 1961.
The law reads:
Crime against Religion
123 Blasphemous Libel
(1) Every one is liable to imprisonment for a term not exceeding 1 year who publishes any blasphemous libel.
(2) Whether any particular published matter is or is not a blasphemous libel is a question of fact.
(3) It is not an offence against this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever on any religious subject.
(4) No one shall be prosecuted for an offence against this section without the leave of the Attorney-General, who before giving leave may make such inquiries as he or she thinks fit.
The law of blasphemous libel first became New Zealand law in 1893 and subsection (3) and (4) of section 123 of the present Crimes Act 1961 reflected English common law at that time. It is clear that these subsections were deliberately inserted to allow freedom of religion and belief and open discussion of religious issues as it was understood and in a manner acceptable in 1893, and to provide protection against misuse of the law.
It is notable that Subsection (3) does not necessarily protect the freedom of expression of artists, cartoonists, comedians, satirists, or those involved in publication or broadcasting, against prosecution for blasphemy or de facto blasphemy charges. There is a real need to protect freedom of expression for these people.
Section 14 of the New Zealand Bill of Rights Act 1990 would appear to provide the necessary protection. It reads:
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
However, section 4 of the same Act reads:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
This means that Section 123 of the Crimes Act 1961 completely negates Section 14 of the New Zealand Bill of Rights Act 1990 so that when there is a charge of blasphemous libel there is no guarantee of freedom of expression other than that provided by subsection 3 of section 123 of the Crimes Act 1961.
Section 6 of the New Zealand Bill of Rights Act is also of interest. It states:
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
This means that if there is any debate over the interpretation and application of subsection 3 of section 123 of the Crimes Act, section 14 of the Bill of Rights will apply. In practice this would negate section 123 of the Crimes Act. This has not been tested in court, but to arrest someone to prove this point would itself be cruel and inhumane. To remove the conflicts and simplify the law it would be preferable to eliminate blasphemous libel as a crime.
Having ratified the International Covenant on Civil and Political Rights (1976) (ICCPR) New Zealand is required to guarantee that:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Not only has New Zealand failed to provide the protection required by Article 19 of the ICCPR, because of section 4 of the New Zealand Bill of Rights, it has with section 123 of the Crimes Act threatened its citizens with the possibility of prosecution for blasphemous libel if anyone should feel offended at something they should express. It must be stressed that there is no Universal Human Right to not be offended and that New Zealand’s section 123 of the Crimes Act 1961 does not meet the requirements of subsection 3 of Article 19 of the ICCPR as there has never been and is no present or future need for a blasphemy law.
In recent years, New Zealand Attorneys-General have cited the right to freedom of expression as a reason for not proceeding with charges of blasphemous libel. There is concern, however, that this will not always be the case.
As section 123 does not and is not intended to protect against the promotion of hatred and violence or protect buildings, objects, and texts; repeal of section 123 will have no impact in these areas.