OUR LAWS, OUR COUNTRY, OUR RELIGION
Not many people know about the laws of the practice of paganism in Australia, so I am attempting to find information, sift through it and tell the general public what they are. Now in every state, witchcraft is legal, Queensland only just recently repelling their laws only at the start of 2001! Victoria has a similar law to Queensland, but I'm not sure whether its still in place or not.
The following is an extract from a document found on The Human Rights of Australia web site:
3.10 Paganism
Pagans see divinity expressed in every part of the universe. The Earth, the
planets, the stars, the void - all are parts of one great, divine source to
the Pagan. Pagans do not "worship" trees or rocks, however they do
revere the divine life force which is contained within trees and rocks, and
within every part of the universe.92
Paganism is a general term which covers a variety of spiritual beliefs centred
upon harmony with the Earth. The umbrella term embraces beliefs such as Celtic
Paganism, Druidry, Shamanism, Wicca and Witchcraft. Wicca is described by the
Pagan Alliance as
"... a modern revival of the ancient folkloric and magical practices of
Europe. Wiccans generally perceive divinity in the form of a Goddess and a God,
who have many different aspects. Most Wiccans celebrate eight Festivals each
year, and hold meetings in accordance with the phases of the Moon.93"
Practitioners of witchcraft are also described by the Pagan Alliance as 'often
skilled herbalists and healers; their practices and techniques are similar in
many ways to those of the tribal shaman, the village Wisewoman and Cunningman'.94
The Commission received a large number of submissions from Pagans and Wiccans.
They complained, in particular, that the free expression of their practices
and beliefs are unnecessarily limited by the criminal law of Queensland which
deems the practice of witchcraft, fortune-telling, sorcery or enchantment an
offence.
Section 432 of Queensland's Criminal Code 1899 provides
"Pretending to Exercise Witchcraft or Tell Fortunes. Any person who pretends
to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration,
or undertakes to tell fortunes, or pretends from his skill or knowledge in any
occult science to discover where or in what manner anything supposed to have
been stolen or lost may be found, is guilty of a misdemeanour, and is liable
to imprisonment with hard labour for one year. "
Similar limitations on the practice of witchcraft also exist in Victoria.95
A number of submissions from individuals in the Wiccan
community who practise magic and witchcraft in the expression of their beliefs
stated that the criminalisation of their practices is an unnecessary limitation
on their beliefs and violates the right to freedom of religion and belief.
As a person with beliefs in traditional witchcraft I feel as though my religion
is still not being accepted by the laws of this country ... the anti-witchcraft
laws in the Queensland Criminal Code (section 432) ... can lead to fines and
imprisonment for anyone "caught" practising witchcraft.96
Witchcraft/Wicca is a valid religion ... My issue is the Witchcraft laws still
active in Queensland. It should be removed because Witchcraft/Wicca is NOT devil
worship.97
A submission from R L Akers to the 1996 Queensland Criminal Code Review suggested
that the illegal status of witchcraft and fortune-telling is evidence of State
endorsed discrimination against Wiccans. He stated that the laws may be used
to perpetuate the unfair stereotyping and stigmatisation which already exist
against people who engage in these practices.98
In one court case in 1990, the knowledge [that] a Wiccan's
religion was illegal was offered as proof of his willingness to break the Law.
This was despite the fact that the charges had nothing to do with the Wiccan's
faith ... 99
In addition to the laws which criminalise witchcraft and fortune-telling, a
number of States and Territories continue to have laws prohibiting fortune telling
for 'payment or gain of any kind'. For example, section 4(1)(o) of the Vagrants,
Gaming and Other Offences Act 1931 (Qld) states that anyone who pretends or
professes to tell fortunes for gain or payment of any kind shall be deemed to
be a vagrant and shall be liable to a penalty of $100 or to imprisonment for
six months. Similar prohibitions exist in the Northern Territory,100 Western
Australia,101 South Australia102 and Tasmania.103
The practice of fortune-telling, including tarot card reading and astrology,
may be the expression of the spiritual beliefs of certain Pagans and Wiccans.
The criminalisation and prohibition of these practices limits their rights to
express their beliefs freely.
Mr Akers alleged that these laws have been used to arrest tourists engaged in
fortune-telling in Queensland, especially backpackers who are unaware of the
State's laws in this respect.
Over the decades there have been numerous reports of tourists being harassed,
even arrested for Vagrancy, after reading cards in coffee shops in an attempt
to raise living expenses.104
NSW, Tasmania and the ACT have not found it necessary
to enact or retain similar legislation.
Within the last five years the Queensland Criminal Code has been the subject
of two reviews by successive Queensland governments. In 1992 R S O'Regan QC
reviewed most of the sections of the Criminal Code and recommended the repeal
of section 432.
This provision appears to be the relic of a more superstitious age and if to
be retained at all, it should be set out in legislation other than the Criminal
Code. There are summary offences relating to fortune telling for gain in the
Vagrants, Gaming and Other Offences Act 1931. If the relevant conduct involves
fraud, it would be sufficiently covered by the new fraud offence ...105
Following a change of government the recommendations of the O'Regan Report were
not adopted. A subsequent review of the Criminal Code by Peter Connolly QC,
completed in July 1996, had very specific and limited terms of reference and
did not include section 432.106
The rationale for retaining the offences prohibiting witchcraft or fortune-telling
for gain or payment appears to derive from the view that the practices are fraudulent,
dangerous and undesirable. In 1996, in response to questions in Parliament concerning
the continued relevance of the provisions, the Attorney-General, the Hon. Denver
Beanland, stated that he was aware of representations to have section 432 of
the Criminal Code and section 4(1)(o) of the Vagrants Gaming and Other Offences
Act 1931 (Qld) repealed. He stated, however,
These provisions ... are there to protect the gullible and to discourage the
practice of not only fortune-telling but, as, section 432 also provides, witchcraft,
sorcery and practices in the occult ... these practices therefore are not archaic.107
Mr Beanland referred to two instances since 1984 - the murder of a man and the
alleged commission of deviant sexual acts on 12 to 15 year old boys - which
were allegedly linked to the practice of the occult. He also referred to a 1976
South Australian Supreme Court decision as support for his view that the provisions
concerning fortune-telling had continued relevance. He said that in that case
it was accepted that the South Australian Parliament had outlawed fortune-telling
'because it was in itself a fraudulent practice and necessarily deceptive whether
or not the defendant genuinely believed in his ability to foretell the future'.108
Submissions on Paganism
A submission by Ms Louise Bowes on behalf of the Servants of the Elder Gods,
however, alleged that the laws prohibiting witchcraft and fortune-telling are
retained because of ignorance about the practices.
The law was retained largely on the basis of ignorance, marrying violent activities
and deliberate deception with the practice of witchcraft and the adoption of
the religion known as "Wicca" ... What this means for the many Wiccan
followers in Queensland is obvious - they experience an immediate inability
to follow their faith for fear of arrest and incarceration.109
To comply with human rights requirements the right to manifest Wiccan or Pagan
beliefs in witchcraft and fortune-telling can be limited by law but only if
the limitation is necessary to protect public safety, order, health, morals
or the fundamental rights or freedoms of others.
No submissions provided any evidence that witchcraft or fortune-telling practices
of themselves present a threat to the safety or well-being of members of the
community. Practitioners refuted such allegations.
Pagans do not perform sacrifices (other than of their own time and energy) and
are not opposed to any other religious beliefs. Pagans do not sexually abuse
children; quite the contrary. Despite many hysterical claims of sexual abuse
by witches and other occultists, none has ever been proven to be true.110
Wicca followers do not worship Satan; we don't even believe in his existence.
We do not sacrifice animals or virgins, and we don't engage in debauched sex
orgies ... we ask the Queensland government exactly what it sees as so dangerous
in our religious practices. Could it be the use of alternative medicines, herbalism,
the horoscope? Could it be self-awareness they are objecting to? Or perhaps
the respect and reverence we give our Earth?111
As Ms Bowes pointed out, if Wiccans engaged in practices which were harmful
to others, they would be subject to the same general laws as the rest of the
community.
Like so many alternate religions, none of our Wiccan practices contravene any
state or federal law as far as violence, stealing, cruelty to animals, abuse
of children etc. are concerned. Should a religious group partake of activities
which do break laws of this nature, then obviously the participants in that
religion would and should be open to prosecution.112
Many members of the Queensland Parliament agree. For example, the Hon T B Sullivan
stated
If there are abuses, let us deal with that abuse. If people practising witchcraft
abuse a young child, let us oppose them for the abuse of the young child, not
for their faith, be that different from our own. If those who are of a non-Christian
background believe in the spirit or spirits and abuse a person in some way they
should be attacked for the abuse and not for their beliefs.113
The Hon M Foley also refuted arguments for the retention of the laws and in
relation to the murder case relied on by the Attorney-General stated
"The Attorney argues that the ... case justifies the retention of this
provision. If the argument in favour of retaining this provision is that it
continues to be relevant to modern times, I ask the Attorney ... on how many
occasions in the last decade a prosecution has been brought under this provision?
The person to whom the Attorney referred was charged and convicted of murder.114"
Comment
If any person murders or sexually assaults a child or adult or commits fraud,
he or she should be and can be adequately punished by the application of the
ordinary criminal law. The jurisdictions of NSW, Tasmania and ACT do not have
provisions which specifically criminalise practices of witchcraft or fortune-telling
but do not find that Pagans endanger public order or that the law is inadequate
to protect individuals from harm. This indicates that the retention of these
laws in Queensland, Victoria, Western Australia and South Australia is not necessary
to secure public order and the protection of individuals.
While these laws are unnecessary for any practical purpose they remain as a
potent threat to the legitimate practices of Pagans and Wiccans. An example
from England shows how such legislation may be used in unforeseen ways. In 1944
a woman, Ms Helen Duncan, who practised as a medium was convicted under the
long-forgotten Witchcraft Act 1735 for 'pretending to exercise conjuration'
and sentenced to nine months imprisonment. Ms Duncan had conducted a seance
and allegedly contacted a sailor on the ship HMS Barham who told the participants
in the seance 'My ship has sunk'. The authorities decided to prosecute for fear
that Ms Duncan constituted a wartime security risk able to 'see' and reveal
the sites for planned D-Day landings in France.115 While this situation was
provoked by wartime fears in 1940s England it is possible that unenvisaged circumstances
in 1990s Australia may lead to the existing legislation being used in such an
inappropriate way.
Findings and recommendations on Paganism
n Wiccans and Pagans have the right to manifest their beliefs 'either individually
or in community with others' in the practice of witchcraft and fortune-telling
subject only to 'such limitations as are prescribed by law and are necessary
to protect public safety, order, health, or morals or the fundamental rights
and freedoms of others' (ICCPR article 18.3).
n There is no evidence to suggest that individuals or the community require
specific protection from witchcraft or fortune-telling practices. There is no
evidence that the practices of witchcraft and fortune-telling in Australia require
limitations as permitted by the ICCPR.
n Any practice associated with witchcraft which might result in physical or
mental injury to other individuals or loss of or damage to property can be dealt
with under general criminal and civil laws dealing with conduct of that kind.
n Similarly, any fortune-telling practices found to constitute fraud or deceptive
conduct can be dealt with adequately under the general criminal law.
n Section 432 of Queensland's Criminal Code 1899 and section 4(1)(o) of the
Vagrants, Gaming and Other Offences Act 1931 (Qld) and the equivalent legislation
in Victoria, Western Australia, South Australia, the Northern Territory and
Tasmania are not necessary to protect public safety, order, health or morals
or the fundamental rights and freedoms of others.
n Laws prohibiting witchcraft and fortune-telling unnecessarily discriminate
against members of the Wiccan and Pagan communities and contravene the right
of practising Wiccans and Pagans to express their religions or beliefs in accordance
with ICCPR article 18.
The Commission recommends
R3.13 The federal Attorney-General through the Standing Committee of Attorneys-General
should encourage Queensland and Victoria to repeal legislation criminalising
the practice of witchcraft, fortune-telling, sorcery and enchantment.
R3.14 The federal Attorney-General through the Standing Committee of Attorneys-General
should encourage Queensland, Western Australia, South Australia, the Northern
Territory and Tasmania to repeal legislation criminalising the practice of fortune-telling.
Also see Stella Australia for more information.
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