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Religious Rights in Australia

HREOC Submission on Paganism

The following informatin is taken from the report Article 18 - Freedom of religion and belief issued by the Human Rights and Equal Opportunity Commission.

Pagans are mentioned in other parts of the report, but this section is the main one dealing with legal issus and also lists the recommendations of the Commission.

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 general ly 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 Australia,102 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 fortunetelling 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, dangeroos 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 gulhble 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.l09

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 Englandshows 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

  • 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).

  • 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.

  • 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.

  • Similarly, any fortune-telling practices found to constitute fraud or deceptive conduct can be dealt with adequately under the general criminal law.

  • 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.

  • 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.

91 - Articles 3, 19 and 24 respectively.

92 - Chel Bardell, Pagan Alliance Inc., Submission R/220.

93 - Id, in attached booklet Paganism: Beliefs and Practices, A Guide to modern Paganism in Australia, Pagan Alliance 1993, revised 1994 and 1997, page 4.

94 - Id, booklet, page 5.

95 - Vagrancy Act 1966 (Vic) section t 3: 'Any person who pretends or professes to tell fortunes or uses any subtle craft means or device by palrnistry or otherwise to defraud or impose on any other person or pretends to exercise or use any kind of witchcraft, sorcery, enchantment or coniuration or pretends from his skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels stolen or lost may be found shall be guilty of an offence. Penalty: 5 penalty units.'

96 - Meagan Phillipson Submission R/25.

97 - V O'Brien Submission R/24.

98 - R L Akers, Queensland Criminal Code Review Submission, September 1996, www.powerup.cocn.au

99 - Id, page 1.

100 - Summary Offences Act (NT) section 57(1 )(d): 'Any person who pretends to tell fortunes, or uses any subtle craft, means, or deviee, by palmistry or otherwise, to deceive or impose upon any of her Majesty's subjects shall be guilty of an offence. Penalty: $1,000 or imprisonment for 6 months, or both.'

101 - Police Act 1892 (WA) section 66(3): 'Every person pretending to tell fortLines, or using any subtle craft, means, or device, to deceive and impose upon any person ... shall on summary conviction be liable to a fine not exceeding $1000 or to imprisonment for any term not exceeding 12 calender months.'

102 - Police Offences Act 1953 (SA) section 40: 'Every person who for personal gain - (a) pretends to tell fortunes; or b) uses palmistry or other subtle craft, means or device to deceive any person, shall be guilty of an offence. Penalty: Forty dollars or imprisonment for one month.'

103 - Police Offences Act 1935 (Tas) section 8(1 ): ' A person shall not pretend or profess to tell fortunes or use any sul3tle craft, means or device, by palmistry or otherwise, to defraud or impose on any other person. Penalty: $500 or imprisonment six months.'

104 - R L Akers, Queensland Criminal Code Review Submission, September 1996 @ www. powerup.com.au at page 5.

105 - Final Report of the Criminal C'ode Review Committee to the A~orney General, June 1992, Schedule 2: Section2 Recommended for Repeal.

106 - Report of the Criminal Code1 Advisory Working Group, July 1996 (unpublished internal report to the Attorney-General).

107 - Queensland, 'Fortune-Telling Criminal Sanctions, Questions on Notice,' Hansard Parliamentary Debates, No 1062, 14 November 1996, page 4237.

108 - Hartridge v Samuels 119761 14 SASR 209.

109 - Louise Bowes, Servants of the Elder Gods, Submission R/221.

110 -Chel Bardell, Pagan Alliance, Submission R/220, attached booklet Paganism: Beliefs and Practice's, A Guide ~ Modern Paganism in Australia, Pagan Alliance, 1993, revised 1997, page 10.

111 - Pagan Alliance NSW, Submission R/222, attached excerpt from The Sunday Telegraph, Letters to the Editor April 6 1997, from 'Lily and Tara - Blacktown'.

112 - Louise Bowes, Servants of the EIder Gods, Submission R/221.

113 - Queensland, Hansard Parliamentary Debates, 25 March 1997, page 819.

114 - Id, page 819 820.

115 - Justice P W Young (ed), 'Current Issues: Witches', [1998] 72 Australian Law Iournal 253, page 254.

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