The common-law offences have been abolished totally in Queensland and Western Australia, when those jurisdictions adopted criminal codes that superseded the common law.
In South Australia, Victoria, and the Northern Territory the situation is ambiguous, as the local criminal codes do not mention blasphemy but also did not specifically abolish the common-law offences.
In New South Wales and Tasmania, the criminal codes do include an offence of blasphemy or blasphemous libel, but the relevant sections are not enforced and generally regarded as obsolete.
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] 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.
Although the common law offences of blasphemy and blasphemous libel were abolished in England and Wales in 2008, they have not been abolished in Australia in South Australia, Victoria, New South Wales, the Northern Territory, and Norfolk Island, and blasphemy but not blasphemous libel remains as an offence in the Australian Capital Territory.
However, British precedents indicate that desuetude has not applied since the Middle Ages and that common law offences must be abolished by legislation.
[8] It requires further investigation or legal decisions to establish whether or not the common law offences of blasphemy and blasphemous libel are extant in Australian states and territories where they have not been abolished or replaced by legislation.
[citation needed] Australia signed the International Covenant on Civil and Political Rights (ICCPR) on 18 December 1972.
The UN Human Rights Committee adopted General Comment 34[9] 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 … ".
Australia also signed the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on 13 October 1966 and ratified it on 30 September 1975.
[10] 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).
At a meeting in the chapel of the United Kingdom 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.
The commission noted that blasphemy law provides only limited protection as religious affiliations in Australia are many and diverse.
The offence of blasphemy, however, protects only the Christian religion, with specific reference to the rituals and doctrines of the Anglican Church.
As part of their considerations, the commission released Discussion Paper 48 (DP 48) in 1991 that proposed that all references to 'blasphemous' material in federal law should be removed.
The commission reported that "it is argued that extending blasphemy law to cover all religions would raise serious difficulties in defining 'religions' and 'gods', would have grave consequences for freedom of speech and might contribute to religious conflict.
In so far as blasphemy causes hurt to a person's sensibilities, the existing provisions on offensive behaviour and other public order offences are sufficient."
The issues that arose in written submissions, preliminary meetings and telephone calls were incorporated by the Commission into Discussion Paper 24: Blasphemy, ("DP 24") which was published in February 1992.
In conclusion, the commission favoured the abolition of blasphemy law and considered that there is no need for a substituted or replacement offence.
[14] This law existed on a more practical level and is to prevent strained relations between Australia and other more religious nations, and to protect the vessel and its occupants from harm whilst in foreign waters.
Section 119 states that any person who, by words spoken or intended to be read, wilfully publishes a blasphemous libel is guilty of a crime of blasphemy, that the question whether any matter so published is or is not blasphemous is a question of fact, that it is not an offence under section 119 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 upon any religious subject, and that no person shall be prosecuted under this section without the consent in writing of the Attorney-General.
Sections 529 and 574 of the Act refer to blasphemous libel but leave the definition of blasphemy and the penalty to the common law.
Section 574 of the same Act states that no person shall be liable to prosecution in respect of any publication by him or her orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace.
The case was R. v. William Lorando Jones (unreported, Parramatta Quarter Sessions, Simpson J., 18 February 1871).
The Commission noted that the public outcry resulting from the penalty imposed upon the convicted blasphemer in the 1871 case caused far more civil unrest than the material which the prosecution was intended to suppress.
[26] Sir Samuel Walker Griffith, who was responsible for the development of the Code, stated that it did not include those provisions of English law which were "manifestly obsolete or inapplicable to Australia".
The case concerned socialist journalist Robert Samuel Ross, who had published a satirical piece in which Bolsheviks ransack heaven.
In 1977, the Criminal Law and Penal Methods Reform Committee stated that "today it would seem anachronistic to charge anyone with blasphemous libel".
[36] This meant that the common law offences of blasphemy and blasphemous libel may have existed without the safeguards provided by section 574 of the Crimes Act 1900 (N.S.W.).