Sanctuary if not asylum? Can Churches offer a legal hope to asylum seekers in the wake of Plaintiff M68-2015 v MIBP  HCA 1
Recently the High Court handed down its decision in Plaintiff M68-2015 v MIBP  HCA 1 affirming the legality of deporting some 210 asylum seekers (including 50 children) back to Nauru after receiving medical treatment in Australia. Now, led by Anglican Dean of Brisbane, Dr Peter Catt, a number of churches and two orders of religious are planning to invoke the Christian tradition of “sanctuary” to offer church and cathedral premises to asylum seekers as sanctums from law enforcement agencies.
The ability of a person to enter a church and by claiming sanctuary become immune to civil authorities has never been tested under Australian law. We set out some analysis of the relevant law below.
Sanctuary the long journey to Australia it did not make?
As noted by those seeking to offer it, sanctuary is a far-reaching historical tradition. In the words of Dr Peter Catt:
Sanctuary was a concept that was certainly alive in the Middle Ages when people could go to a church…and claim sanctuary …[I]t was a way of saying I’m entering into God’s territory, away from the civic authorities that are oppressing me, and the oppressors generally accepted that the church could offer sanctuary to people.
Sanctuary does indeed have a long history, being even sourced to the Old Testament records of sanctuary being sought in the altar of the Hebrew temple (see for example 1 Kings 1:49-53). Another source comes from the Greek concept of asylum which means roughly “what cannot be seized” or what is inviolable, while an early adoption in international law is found in the Treaty of Qadesh between Ramses II of Egypt and Hatusili III of the Hittite Kingdom signed sometime in the 13th century BC whereby a population exchange was proposed on the condition that no individuals of either side nor their families could be subject to any kind of sanction.
It was not until the Christian Roman Empire however that we have the codification of the law of asylum in the Codex Theodosianus (c. 438 AD). The Codex recognised the prerogative of Churches in the Roman Empire to grant asylum and even set the territorial limits of the asylum thus eliminating the need for the persons granted asylum to have to remain within the Church building to be afforded the protection. These Roman Law ideas were adopted in the development of Medieval European law.
Sanctuary as a legal concept in England is found from about the seventh century when it was proclaimed by King Ine, ruler of the West Saxons, and later given legislative effect by Alfred the Great in 877 AD recognizing the monarch’s Christian duty of leniency towards penitents. Although there were some modifications to King Alfred’s law, such as by William the Conqueror who imposed a restriction on the number of times one could claim sanctuary, the general law of sanctuary continued to withstand the growing tensions between Church and State that characterized the Middle Ages in England.
It was with Henry VIII that these tensions peaked and the derogation from the right to sanctuary began. In particular in 1535, sanctuary was abolished for the crime of high treason as well as rape, murder, burglary, arson, and sacrilege. The derogation was completed with respect to criminal law in 1624 by James I who abolished the rule of sanctuary by the statute 1 James I c. 25 to unify secular power in keeping peace in the realm. In 1697 the remaining right of sanctuary for civil offences was ultimately abolished by an Act of Parliament under the reign of William III.
As such, even if a right of sanctuary preceded its statutory creation by Alfred the Great, it would have nonetheless been abolished by the later statutes which override common law to the extent of any inconsistency.
How does this apply in Australia?
The founding of Australian colonies under the doctrine of terra nullius meant that all British laws had full effect in the colonies and all subsequent laws made in the colonies could not be “repugnant” (i.e. contrary) to British law. Assuming the British law of sanctuary continued in its statutory or perhaps even common law form, without statutory abolition in 1624 and 169, then it may have been possible to argue that it was operative in Australia at the time of arrival of the First Fleet and part of Australian law. However, since it seems it could not form part of British law at the time of settlement, as a consequence it could not be passed into Australia through the colonies.
How does the High Court decision affect sanctuary?
The historical trail suggests sanctuary is not part of Australian law. The reasoning of the High Court in relation to the government’s immigration policies is perhaps an even more concrete obstacle for sanctuary and other legal avenues for asylum seekers. Of course in Australia we also have the Australia Act 1986 which effectively eliminated the ability of the UK to legislate in Australia, and thus guided the path for Australian parliaments and courts to self-determination.
On the issue of refugees and/or asylum seekers certain legislation and judicial guidance has developed. Under s 198A of the Migration Act if an individual enters Australia’s jurisdiction claiming asylum they may not be removed from Australia for the purposes of having their refugee status assessed unless the country the asylum seeker is being removed to meets the criteria set out in s 198A(3). This section essentially creates the power to detain and/or assess asylum seekers in Australia’s various detention facilities. Under s 189 of the Migration Act “if an officer knows or reasonably suspects that a person in the migration zone (other than an excised off shore place) is an unlawful non-citizen, the officer must detain the person” until such time as a visa is granted or they are removed from Australia and returned to their country of origin Commissioner of Taxation v Hunger Project Australia  FCAFC 69. However, “if an officer knows or reasonably suspects that a person in an excised off shore place [such as Christmas Island] is an unlawful non-citizen, the officer may detain the person. There is no provision governing the length of time that an asylum seeker is detained. In fact in Al Kateb v Godwin the full federal court confirmed that indefinite mandatory detention of asylum seekers is within the scope of the Act and Constitution.
If a right to sanctuary were being sought in the High Court the existence of the Migration Act legislation discussed above and deemed to be constitutional, would need to be considered alongside any residual rights to sanctuary that might exist in Australia: and the High Court would need to consider these against the backdrop of any “connection” between Australia and the UK, which itself, would be informed by the effect of the Australia Act in 1986.
As a consequence it is likely to remain that individuals who travel to Australia seeking asylum or protection will be immediately detained and held in one of Australia’s onshore or offshore detention facilities indefinitely.
 Maria-Teresa Gil Blazo, ‘Asylum as a General Principle of International Law,’ International Journal of Refugee Law (2015) Volume 27, Issue 1Pp. 3-28.
 Migration Act 1958 (Cth), s 189(1)
 An offshore place is defined in Migration Act 1958 (Cth) s 5 as “excised offshore place” and also see Migration Act 1958 (Cth), s 189(3).
 (2003) 126 FCR 54