Sanctuary – does it exist?
We’ve seen it in movies– a man pursued by soldiers or police runs to the church’s heavy wooden doors, flings them open and dives inside the church claiming sanctuary. The brave priest bars the entrance and the pursuers stop at the doors, fearing what might happen if they cross the threshold and break the protection of church sanctuary. So long as the fugitive remains inside the church, the powers outside church walls cannot touch him.
Several Australian church leaders recently invoked the ancient rite of sanctuary offering protection of the church to asylum seekers, including babies born in Australia, who are due to be deported to the Nauru after a High Court decision ruling the government policy of offshore detention was legal.
But does the notion of church sanctuary still exist? Does it have any legal basis in today’s Australia? If the asylum seekers did make it into the churches offering sanctuary, could Border Force officers or police forcibly remove them?
The origin of the notion of sanctuary goes way back to the ancient Greeks and Romans who held temples were sacred places that protected those who enter. Some ancient cultures had caves, woods or lakes as places of sanctuary. Under the Romans, and as the Christian Church grew, sanctuary became part of common law, but it rarely gave permanent protection from facing judgement for serious crimes like murder. Sanctuary often lasted only so long as the fugitive could pay for protection.
By the Middle Ages the power of monarchs and the church dominated the state and they didn’t like sanctuary. Too many rebels claimed sanctuary to escape the law, and worse, some claimed sanctuary to avoid taxes.
In 1471 King Edward IV raided a rival who was claiming sanctuary in a church and beheaded him. In 1623 King James I abolished sanctuary for criminal offences. In 1697 William III did the same for civil offences. Sanctuary no longer had any legal basis.
Australia has never recognised church sanctuary, and under the Migration Act anyone who harbours an “unlawful non-citizen” or someone due to be deported risks facing ten years jail and a $180,000 fine.
Stacks Law Firm lawyer Anneka Frayne says while sanctuary doesn’t exist under Australian law, it wouldn’t be a good look for Border Force officials to storm a church and drag out asylum seekers clutching babies.
“I would think that image would go around the world and might be greater protection for the church than any legal claim of sanctuary,” she said.
Embassies, however, are protected from local police. Australian Julian Assange has had sanctuary inside the Ecuador Embassy in London for more than three years.