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
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.
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