Wednesday, November 4, 2015

"Banning race discrimination is the conservative choice" [Off-Topic]

I realize this is off-topic for the blog, but I don't have anywhere else to put it as it was rejected by The Australian.
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Recent columns about indigenous recognition in the pages of The Australian from self-described “constitutional conservatives” have lambasted the proposal to ban race discrimination in the Australian Constitution, labelling it a “radical” idea sure to lead to “judicial adventurism.”  In reality, banning race discrimination is the smart, safe, and conservative choice when it comes to constitutional reform.  Here are four reasons why.

First, the concept of banning race discrimination is not new, nor it is radical.  The American Constitution banned race discrimination in 1868.  A full decade ago, a breathtaking 97 % of written constitutions globally contained a specific ban on race discrimination or a general guarantee of equality.  We all know that Australia is now the only democracy that has a written constitution but lacks a true bill of rights.  If anything is “radical,” it is the current Australian approach.

Second, there are already, and always have been, some rights in the Australian Constitution: a right to just compensation for property taken by the government, a right to freedom of religion, a right to trial by jury, and more.  There’s even already a right to be free from discrimination, but only on the basis of state residency.  If “judicial adventurism” by “activist judges” interpreting rights were going to be a problem in Australia, it could have and would have manifested over the past 114 years.

Third, the decisions of our elected representatives in Parliament deserve our respect, but not our blind obedience.  Does the Parliament of Australia have a perfect and unblemished record when it comes to matters of race?  We know the answer because we know our history.  Safeguards are necessary in a democracy, just as having health insurance is smart even when we’re not yet sick.

Finally, we should not hesitate to declare this truth as self-evident: adversely discriminating against someone on the basis of their skin colour or their ethnic heritage is a grave moral wrong.  Full stop.  Instead of asking why race discrimination should be banned in the Constitution, we should always ask the opposite.  Why would we ever think that government needs to make people worse off because of their race?  Somehow, almost every other country in the world manages to get by while constrained by a formal constitutional ban on race discrimination.  Australia can too.

Changing a constitution can have ramifications.  We should always be cautious and deliberate.  But we need not give into paranoia, and we shouldn’t hesitate to do what is right.  Banning race discrimination in the constitution is a tried, tested, and responsible way to balance the democratic voice of the majority with the fundamental rights of the minority.


Jeremy Patrick is a Lecturer at the University of Southern Queensland School of Law and Justice and co-editor of a forthcoming book on the recognition referendum.

Wednesday, October 28, 2015

Three Debates on Faith and Democracy

Earlier this month, I had the pleasure of engaging in a debate with my USQ colleague Dr. Vito Breda.  We looked at three topics involving faith and democracy:  whether there should be a ban on wearing the burqa in public, whether religious arguments belong in the debate over same-sex marriage, and whether democracies could still thrive if adherence to mainstream religions dwindled.  You can watch the entire debate or parts of it using the links below:

All Debates
Description:  "Jeremy Patrick and Vito Breda debate whether Australia should ban the burqa, whether religion is relevant in the debate over same-sex marriage, and whether liberal democracy can thrive if organised religion declines."

Debate 1
Description:  "Jeremy Patrick and Vito Breda discuss whether Australia should ban the burqa.  Topics include feminism, public security, and the link between identity and political expression."

Debate 2
Description:  "Jeremy Patrick and Vito Breda discuss whether religious arguments belong in the debate over the upcoming Australian plebiscite on same-sex marriage."

Debate 3
Description:  "Jeremy Patrick and Vito Breda discuss the decline of religion in Western Europe and what it means for democracy."

Tuesday, September 29, 2015

Chronology of English Statutes & Cases on Fortune-Telling

Although this blog is officially on hiatus, my work for my book on the criminalization of witchcraft and fortune-telling continues apace.  In case others might find it useful, here is my partial chronology of English statutes and cases on fortune-telling:


Chronology of English Statutes & Cases on Fortune-Telling

1530:  [Egyptians ActAn act concerning Egyptians 22 Hen. 8 c. 10  (“many outlandish people, calling themselves Egyptians, using no craft nor feat of merchandise, have come into this realm, and gone from shire to shire, and place to place, in great company; and used great subtle and crafty means to deceive the people--bearing them in hand that they, by palmistry, could tell men's and women's fortunes; and so, many times, by craft and subtlety, have deceived the people of their money; and also have committed many heinous felonies and robberies, to the great hurt and deceit of the people that they have come among . . .  no such persons be suffered to come within this the King’s Realm, and if they do than they and every one of them so doing shall forfeit to the King our Sovereign Lord all their goods and chattels and then to be commanded to avoid the realm within 15 days next after the commandment upon pain of imprisonment . . .  The Egyptians now being in the Realm have monition to depart within 16[?] days after proclamation”)   (unverified: repealed in 1840 by 19-20 Vict. c. 64 or by Repeal of Obsolete Statutes Act 1856?)  (modernised spelling)

1530-1531:  [Vagrancy ActAn act concerning punishment of Beggars and Vagabonds, 22 Hen. 8 c. 12 (“Where in all places through this realm of England, vagabonds and beggars have of long time increased and daily do increase in great and excessive numbers by the occasion of idleness, mother and rote of all vices . . .” [requires beggars to be licensed, and sets punishment of stocks or whipping for begging without a license or outside of licensed area]  “all other idle persons going about in any countries or abiding in any city, borough, or town, some of them using diverse and subtle craft and unlawful games and plays and some of them feigning themselves to have knowledge in Physic, Physiognomy, Palmistry, or other crafty science whereby they bear the people on hand, that they can tell their destinies, deceases, and fortunes and such other like fantastical imaginations to the great deceit of the King’s Subjects, shall . . . be punished by whipping at two days together [second offence is whipping, pillory, and having an ear cut off; third offence is whipping, pillory, and having other ear cut off]”  (verified repealed by 1597 Vagrancy Act) (modernised spelling)

1542:  [Witchcraft ActThe bill against conjuration and witchcrafts and sorcery and enchantments 33 Hen. 8, c.8 (“if any person or persons . . . use, devise, practise, or exercise, or cause to be used, devised, practised, exercised, any Invocations or conjurations of Sprites, witchcrafts, enchantments, or sorceries, to the intent to get or find money or treasure, or to waste, consume, or destroy any person in his body members or goods, or to provoke any person to unlawful love, or for any other unlawful intent or purpose, or by occasion or [?] of such things or any of them, or for despite of Christ, or for lucre of money, dig up or pull down any Cross or Crosses, or by such Invocations or conjurations of Sprites, witchcrafts, enchantments, or sorcery or any of them take upon them to tell or declare where goods stolen or lost shall become, that then all and every such offence and offences . . .shall be deemed, accepted, and adjudged Felony.”) (unverified: repealed by statute of 1 Edward 6 c. 12 or 9 Geo. 2 c. 5 s. 4?) (modernised spelling)

1554: [Egyptians ActAn act for the punishment of certain persons calling themselves Egyptians 1&2 Phil. & Mar. c. 4   (recites purpose of 1530 Act, says gypsies did not fear old penalties and have “enterprised to come over again into this Realm using their old accustomed devilish and naughty practices and devises”.  Says all present Egyptians must leave within 20 days or forfeit goods, and if they have not left within 40 days, become felons) (unverified: repealed by Repeal of Obsolete Statutes Act 1856?) (modernised spelling)

1563: [Witchcraft Act] An Act Against Conjurations, Enchantments, and Witchcrafts  5 Eliz. 1, c. 16  (says that after 1542 Witchcraft Act was repealed in the first year of the reign of Kind Edward, “since the repeal whereof many fantastical and devilish persons have devised and practiced invocations and conjurations of evil and wicked Sprites, and have used and practices Witchcrafts, enchantments, charms, and sorceries, to the destruction of the persons and goods of their neighbours and other subjects of this realm, and for other lewd intents and purposes contrary to the laws of Almighty God, to the peril of their own souls, and to the great infamy and disquietness of this Realm”)  Sets three categories of crimes:
1.       “if any person or persons shall  . . . take upon him or them, by witchcrafts, enchantment, charm, or sorcery, to tell or declare in what place any treasure of gold or silver should or might be found or had in the earth or other secret places, or where goods or things lost or stolen should be found or become, or shall use or practise any sorcery, enchantment, charm or witchcraft, to the intent to provoke any person to unlawful love, or to hurt or destroy any person in his or her body, member or goods”  (Penalty: 1 year’s imprisonment and pillory; second offence: life imprisonment)
2.      “if any person or persons.  . . shall use, practise or exercise any witchcraft, enchantment, charm, or sorcery, whereby any person shall happen to be wasted, consumed, or lamed in his or her body or member, or whereby any goods or chattels of any person shall be destroyed, wasted, or impaired” (Penalty: 1 Year’s imprisonment and pillory; Second Offence:  Death)
3.      –as # 2 above, but where “whereby any person shall happen to be killed or destroyed” (Penalty: Death)
(modernised spelling)
(verified repeal by 1604 Witchcraft Act)

1563: [Egyptians Act] An act for the punishment of vagabonds calling themselves Egyptians 5 Eliz. c. 20  (says question about whether  1554 Egyptians Act applies to gypsies born in England; confirms operation of that statute, but adds that “all and every person or persons which . . . shall be seen or found within Realm of England or Wales in any company or fellowship of vagabonds commonly called or calling themselves Egyptians, or counterfeiting, transforming or disguising themselves by their apparel, speech, or other behaviour like unto such vagabonds commonly called or calling themselves Egyptians, and so shall or do continue and remain in the same, either at one time or at several times by the space of one month” shall be declared a Felon)  (unverified: repealed by Statute Law Revision Act 1871) (modernised spelling)

1597:  [Vagrancy ActAn act for punishment of rogues, vagabonds, and sturdy beggars 39 Eliz. c. 4 s. 2 (repeals all previous vagrancy acts; establishes several categories of persons to be deemed Rogues, Vagabonds, and Sturdy Beggars, including those representing themselves as Egyptians and “all idle persons going about in any country either begging or using any subtle craft or unlawful games and plays, or feigning themselves to have knowledge in Physiognomy, Palmistry, or other like crafty science, or pretending that they can tell destinies, fortunes, or such other like fantastical imaginations”  Punishment: whipping, returned to home area, forced labour) (modernised spelling)

1604:  An Act against conjuration, witchcraft, and dealing with evil and wicked spirits 2 Ja. 1 c. 12 (repeals 1563 Witchcraft Act) Sets up two categories of offences:
1.       “if any person or persons shall  . . . take upon him or them by witchcraft, enchantment, charm, or sorcery to tell or declare in what place any treasure of gold or silver should or might be found or had in the earth or other secret places, or where goods or things lost or stolen should be found or become; or to the intent to provoke any person to unlawful love, or whereby any chattels or goods of any person shall be destroyed, wasted, or impaired, or to hurt or destroy any person in his or her body, although the same be not effected and done” (Penalty:  1 Year’s Imprisonment & Pillory;  Second Offence:  Death as a Felon)
2.      “if any person or persons . . . shall use, practise, or exercise any invocation or conjuration of any evil and wicked spirit, or shall consult, covenant with, entertain, employ, feed, or reward any evil and wicked spirit to or for any intent or purpose; or take up any dead man, woman, or child out of his, her, or their grave, or any other place where the dead body rests, or the skin, bone, or any other part of any dead person, to be employed or used in any manner of witchcraft, sorcery, charm, or enchantment; or shall use, practise, or exercise any witchcraft, enchantment, charm, or sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined [?], or lamed in his or her body, or any part thereof;” (Penalty:  Death as a Felon)
            (verified repeal by 1736 Witchcraft Act) (modernised spelling)

1714:  [Vagrancy Act] An act for reducing the laws relating to rogues, vagabonds, sturdy beggars, and vagrants, into one act of parliament; and for the more effectual punishing such rogues, sturdy beggars and vagrants, and sending them whether [sic] they ought to be sent 12 Anne 2 c. 23 (version I have appears to be a summary only) (various provisions regarding vagrants, basically whipping them and ordering them back to their homes or a house of correction; nothing in summary about fortune-telling, but it’s hard to know)

1736:  [Witchcraft Act] An act to repeal the statute made in the first year of the reign of King James the First, entitled, An Act against conjuration, witchcraft, and dealing with evil and wicked spirits, except so much thereof as repeals an act of the fifth year of the reign of Queen Elizabeth, Against conjurations, enchantments, and witchcrafts, and to repeal an act passed in the parliament of Scotland in the ninth parliament of Queen Mary, entitled Anentis witchcrafts, and for punishing such persons as pretend to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration 9 Geo. 2 ch. 5 s. 4  (repeals 1604 Witchcraft Act)  (says in Section 3 that “no prosecution, suit, or proceeding, shall be commenced or carried on against any person or persons for witchcraft, sorcery, enchantment, or conjuration, or for charging another with any such offence, in any court whatsoever in Great Britain” but in Section 4 says “And for the more effectual preventing and punishing any pretences to such arts or powers as are before-mentioned, whereby ignorant persons are frequently deluded and defrauded; be it further enacted. . . . that if any person shall . . . pretend to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertake to tell fortunes, or pretend from his or her skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels, supposed to have been stolen or lost, may be found; every person so offending, being thereof lawfully convicted . . . shall for every such offence suffer imprisonment, by the space of one whole year without bail . . . and once in every quarter of the said year . . . stand openly on the pillory by the space of one hour”  (verified repealed by 1951 Fraudulent Mediums Act) (spelling modernised)

1744: [Vagrancy Act] An act to amend and make more effectual the laws relating to rogues, vagabonds, and other idle and disorderly persons, and to houses of correction.  17 Geo. 2, c. 5, s. 2 (“all persons pretending to be gypsies, or wandering in the habit or form of Egyptians, or pretending to have skill in physiognomy, palmistry, or like crafty science, or pretending to tell fortunes, or using any subtle craft to deceive and impose on any of His Majesty’s subjects” shall be deemed rogues and vagabonds) (spelling modernised)

?1762:  Egyptians Act (unverified: repealed by Statute Law Revision Act 1871?) (have not obtained)

1807: Trial of Joseph Powell (vagrancy) (Perkins article)

?1822:  3 Geo. 4 c. 40, s. 3 (“all persons pretending to be gypsies; all persons pretending to tell fortunes, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose on any of His Majesty’s subjects” are to be deemed rogues and vagabonds) (repealed all previous vagrancy legislation) (have not obtained)

1824:  [Vagrancy Act] An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England, 5 Geo. 4, c. 83, s. 4 (verified: repealed all previous vagrancy legislation) (“Every person pretending or professing to tell fortunes, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose on any of His Majesty’s subjects . . . shall be deemed a rogue and a vagabond.”  Penalty: hard labor for three months) [verified repeal by Fraudulent Mediums Act, 1951]

1868: Lyon v. Home (common law undue influence on gifts)
1876:  Henry Slade (Vagrancy Act 1824) (unreported, in Hayward)
1877:  Monck v. Hilton (Vagrancy Act 1824)
1887:  Penny v. Hanson (Vagrancy Act 1824)
1895:  Lee or Smith v. Neilson (Vagrancy Act 1824)
1899: Regina v. Entwistle (Vagrancy Act 1824)
1904: R v. Stephenson (Witchcraft Act 1735)
1918: Davis v Curry (Vagrancy Act 1824)
1921:  Stonehouse v. Masson (Vagrancy Act 1824)
1939: Bessy Birch (Witchcraft Act 1735) (unreported, in Hayward)
1944:  Rex v. Duncan (Witchcraft Act 1735)
1948:  Farmer v. Mill (Vagrancy Act 1824)
1950:  Charles Botham (Witchcraft Act 1735) (unreported, in Hayward)

1951:  Fraudulent Mediums Act 1951  “any person who (a) with intent to deceive purports to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers, or (b) in purporting to act as a spiritualistic medium or to exercise such powers as aforesaid, uses any fraudulent device, shall be guilty of an offence.  (2)  A person shall not be convicted of an offence under the foregoing subsection unless it is proved that he acted for reward; and for the purposes of this section a person shall be deemed to act for reward if any money is paid, or other valuable thing given, in respect of what he does, whether to him or to any other person.”  (Penalty:  summary conviction: fine up to fifty pounds and/or imprisonment upon to four months; conviction on indictment: fine up to 500 pounds and/or imprisonment up to two years)  (verified repealed by Consumer Protection from Unfair Trading Regulations 2008)

1981: R. v. Martin (Vagrancy Act, 1824)


2008:  Consumer Protection from Unfair Trading Regulations 2008  (general consumer protection statute against fraudulent or misleading behaviour)

Sunday, June 28, 2015

Posting Hiatus

I think the time has come to say that this blog probably won't be updated further, except for occasional special postings about publications and so forth.  One only has to look at the yearly list to see that the number of posts have steadily declined on this blog since it began five years ago.  Unfortunately, a blog that I had plenty of time to update while a graduate student has become quite hard to maintain now that I work full time, and I'm trying to put the energy of reading and writing about law and religion issues into publishable formats (articles and books) rather than blog posts.  Still, I'm happy with the content of the posts and the number of hits they received, so everything will stay in its current place.  For those of you who have been reading along, many thanks!

Sunday, February 22, 2015

Two Discussions of my Work

Much has been happening on the front of anti-blasphemy law campaigning in recent months, and it's very exciting.  I'm also very far behind on blogging!  For now, links to a couple of articles on abolishing Canada's blasphemy laws that include a discussion of my work:

Jacob Gershman, "Charlie Hebdo Attack Spurs Effort to Abolish Canada's Blasphemy Law" Wall Street Journal LawBlog (Jan. 8, 2015).

Thomas Walkom, "Canadian Blasphemy Trial a Warning Against Smugness" Toronto Star (Jan. 16, 2015).

Thursday, November 6, 2014

Christian Couple Burned Alive by Mob in Pakistan After Alleged Desecration of Koran

CNN reports that a Christian couple in Pakistan were surrounded by a mob, beaten, and then thrown alive into a nearby kiln to die.  The mob formed after rumors spread that the couple had desecrated the Koran, which led to announcements through mosque loudspeakers.  No evidence has been found that a Koran was desecrated.  Police have arrested 40 in connection with the murders.

Pussy Riot Member Fails in Appeal

A member of the punk band Pussy Riot has had her appeal turned down by Russia's Constitutional Court, according to Religion Clause Blog.  Nadezhda Tolonnikova had earlier been convicted of disorderly conduct after a performance at a cathedral in Moscow.  She had appealed to the Constitutional Court, arguing that the conviction violated her freedom of expression, placed the internal rules of religious groups ahead of public law principles, and more.