Churches around Australia invoked the centuries-old principle of church sanctuary following a High Court decision last week that cleared the way for 267 asylum seekers to be returned to Nauru or Manus Island. The churches offered protection to any refugee who could make it onto their grounds.

This is not the first time in recent decades that churches have invoked sanctuary in an attempt to protect those they perceive need help. Since 1982, a sanctuary movement has operated in the US assisting refugees. Church workers have explicitly declared their grounds as public sanctuary.

In Australia in 1999, the Uniting Church opened a medically supervised injecting centre for drug users in breach of criminal law at the Wayside Chapel in Sydney.

These contemporary claims of sanctuary are grounded in history. A sanctuary was a sacred place where a particular authority granted protection to a fugitive. But the abolition of the church’s version of sanctuary in more recent times is often presented as a story of progress; there is no need for other and higher laws in the modern state – which is itself the sanctuary.

Civil disobedience

The Australian churches’ assertion of sanctuary is an act of civil disobedience. This is part of an historic natural law tradition, which asserts that laws can be judged not only by whether they are correctly made, but whether they are good and right.

The justification for civil disobedience in this case is that Australia’s current refugee policies are harmful and wrong. This explicitly challenges the current state response to refugees. These acts of disobedience force the state to choose between different interpretations and meanings of the law.

Church representatives have accepted they may be punished for this civil disobedience. But will police breach church territory to arrest any asylum seekers who seek sanctuary and any of those complicit in offering sanctuary? Will members of judiciary be willing to impose criminal sanctions on those involved in civil disobedience?

Recent examples of sanctuary

In the US the territory of the modern sanctuary movement has been respected. Police wait outside the church until a person leaves and then charges them with various immigration offences.

But, in Australia, police did not respect the Uniting Church’s claim of sanctuary in 1999. During the five days it operated, there were three police raids at the medically supervised injecting centre at the Wayside Chapel. People injecting drugs were arrested.

During the third raid, the room was sealed off, and the names and details of everyone in attendance were obtained. The clergyman and three people with prohibited drugs were charged and required to appear in court. But magistrates dismissed all charges associated with the cases.

In the US, however, the prosecution has successfully requested the court exercise judicial control to preclude the defence from using the courts to put the US Central American migrant policy on trial. This has left the defence with no basis to argue that sanctuary was constitutionally protected. Sanctuary workers have been found guilty of conspiring to smuggle aliens into the US and placed on probation.

The establishment of the medically supervised injecting centre through sanctuary highlighted the irrationality and harmfulness of the existing drug prohibition regime. The centre’s aim was to stimulate media attention, engage in moral – and rational – persuasion and hopefully stimulate law reform by challenging an existing worldview and offering an alternative.

The centre resulted in government inquiries and led to the creation of the legal injecting room that continues to exist today.

It is likely Australian police will not respect the territorial boundaries of the churches’ claim to sanctuary for the asylum seekers, if any choose to take up the churches’ offer. It is questionable whether or not the judiciary will apply the law against those who have engaged in these acts of civil disobedience.

What is definite, though, is the church’s assertion of sanctuary will stimulate debate about the morality and justice of the current laws with regard to asylum seekers.

The headline was amended for clarity post-publication.