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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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