Australian Laws on Paganism
In every
state in Australia, witchcraft is legal, Queensland
only just recently repelled their laws at the start
of 2001! Until then it had still been illegal to
practise Witchcraft whatsoever.
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.