Places of Refuge: What Legal Basis for the Churches' Offer of 'Sanctuary'?
Wednesday, 2 March 2016
| Neil Foster
In last week's high-profile decision of the High Court of Australia, Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1, a 6-1 majority ruled that the Australian government is entitled to continue its policy of detaining certain asylum seekers off-shore in the Pacific nation of Nauru.
In the aftermath of the decision, and in response to the plight of a group of mothers and their babies and young children who have been receiving medical treatment in Australia, and will now have to be returned to the dreadful conditions in Nauru, a number of Christian churches went public with an offer of "sanctuary" for those who are supposed to be returned.
It seems worthwhile to reflect on the legal issues surrounding "sanctuary" in Australia.
Background to the law of "sanctuary"
Most people would be aware that church buildings in the past were places of refuge, where some wrongdoers could seek sanctuary from arrest. This idea no doubt had its roots in the Bible, where in the Old Testament there are some recorded references to people seeking sanctuary at the altar of the Temple (see 1 Kings 1:49-53; 2:28-34).
The law of Moses also saw a system of "cities of refuge" (Joshua 20:1-6) where those who had committed what today would be called "involuntary manslaughter" could seek to flee from revenge at the hands of the family of the deceased.
In the early days of the common law of England, this was implemented by a system of sanctuary which applied in local churches in different ways. With the growing power of the secular monarchy, areas where wrongdoers could escape the King's justice were increasingly reduced, and in 1624 sanctuary as a common law doctrine was abolished by statute.
Any legal operation of the doctrine, then, was well and truly removed from the common law before the European settlement of Australia, and not part of that law which was "received" into our system.
In any event, the continuation of a law which gave special recognition to the status of church buildings was unlikely to have survived the process of Federation, where at least for the purposes of the Commonwealth, no "establishment" of religion was possible under s.116 of the Constitution.
Churches and civil disobedience
It seems likely, then, that members of a church who shelter someone who is supposed to be returned to Nauru may be guilty of an offence under s.233E of the Migration Act 1958 (Cth), subsection (3) of which provides:
(3) A person (the first person) commits an offence if:
(a) the first person harbours another person (the second person); and
(b) the second person is an unlawful non-citizen, a removee or a deportee.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
While I am not aware of other Australian cases dealing with the meaning of this provision - or of "harbouring" - the general sense seems to be that of providing accommodation and support for someone who is breaking the law. In the United States a decision of the 9th Circuit U.S. Court of Appeals, United States v Aguilar, 883 F 2d 662 [1989] found that a church which had engaged in support for illegal migrants was guilty of "harbouring" under a broadly equivalent provision of U.S. law, 8 USC 1324.
While churches usually acknowledge the importance of keeping the law, in line with the Biblical injunction in Romans 13:1, Christian history and the Biblical witness record occasions where their higher loyalty to God has to take precedence over obedience to civil authority. For example:
"So they called them and charged them not to speak or teach at all in the name of Jesus. But Peter and John answered them, 'Whether it is right in the sight of God to listen to you rather than to God, you must judge, for we cannot but speak of what we have seen and heard'. And when they had further threatened them, they let them go, finding no way to punish them, because of the people, for all were praising God for what had happened." (Acts 4:18-21)
The reluctance of the authorities to punish the apostles, because of their popularity with the general public, is interesting, but the U.S. examples noted above reveal that churches cannot always rely on the Government declining to prosecute.
The relevance of religious freedom
It might be argued, however, that a church determined to provide sanctuary was not necessarily breaking the law, if doing so was necessary to live out the commitments of their religious faith.
Section 116 of the Commonwealth Constitution not only forbids the "establishment" of religion, but it alsoprohibits the Commonwealth Parliament from enacting a law "for prohibiting the free exercise of any religion." But this provision, while it has not yet been fully explored, might offer some protection for conscientious action by churches in this area.
Let me here address what may be two immediate objections to this suggestion.
First, some might object that religious freedom protects a person's right to believe, and perhaps their right to go to church, or a mosque, or a synagogue; but it cannot over-ride a generally applicable law like the migration law. The short answer is that this is not the way a right to "free exercise of religion" operates. It is generally recognised in international law, and in other countries where religious freedom is protected, that it not only protects the area of belief and worship, but also provides at least some protection for action involved in living out one's faith.
In the main Australian case on the issue so far, Adelaide Company of Jehovah's Witnesses Inc v Commonwealth[1943] 67 CLR 116, handed down at the height of the Second World War when it was thought that the Jehovah's Witnesses organisation were undermining the war effort and so should be banned, the High Court of Australia stressed that religious freedom was a key human right recognised by the Constitution, and involved not simply internal belief but also everyday action. As Latham CJ said:
"The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion."
Of course, any human right must be balanced in the context of other human rights. The way that Latham CJ put it was that Commonwealth laws must not "unduly" interfere with religious freedom. In the context of that decision, the court deferred to the Commonwealth Government's views on what was necessary for national security in the midst of the war, and would have upheld the relevant provisions if they had otherwise been valid. But the case stands squarely for the proposition that this sort of balancing process is necessary.
A second objection to seeing the offer of sanctuary to refugees as a part of an exercise of religion might be that not all churches agree that this is an appropriate response to the situation. It might be said that offering sanctuary is not "required" by the Christian faith. Again, the short answer to this is that protection of religious freedom does not simply extend to parts of a faith that are universally agreed on by all members of the religion. Cases from around the world demonstrate that as long as a belief is genuinely motivated by a sincere religious faith (and the religion itself is not a "sham" or a "hoax"), then it can be taken into account and the balancing process needs to be undertaken.
This can be illustrated from the 2013 decision of the European Court of Human Rights in the case of Eweida v United Kingdom [2013] ECHR 37, where the Court held that Ms Eweida's religious freedom had been unduly impaired by a directive from her employer, British Airways, that she not wear a cross at work. It was conceded that not all Christians saw the wearing of a cross as "mandated," but Ms Eweida's belief that she should do so was sincere and a part of a tradition in Christianity that would be protected.
No doubt churches offering sanctuary could point to strong arguments from the Bible, including the command to love one's neighbour, as supporting their offers, especially given the emerging evidence of the serious harm to which asylum seeker children in particular are exposed on Nauru, both in terms of the risk of physical and sexual assault, and the danger to long term psychological well-being.
So, these two objections do not mean that an argument based on religious freedom could not succeed. But there are still a number of hurdles to be overcome. A court asked to decide the matter would need to address the question whether a prosecution of a congregation for its religiously motivated decision to provide sanctuary to an asylum seeker was an "undue" infringement of its religious freedom (or, which is probably the same question here, the religious freedom of its members).
There is one suggestion that may point to a way forward. In the decision of McCloy v New South Wales [2015] HCA 34 (7 October 2015), the High Court set out a detailed scheme for addressing the question of whether there had been a breach of the "implied freedom of political communication" found under the Constitution. I haveargued elsewhere that the "McCloy schema" could be adapted to this question of undue infringement of religious freedom. I suggested:
"now that the High Court in McCloy has set up a careful scheme for balancing the implied freedom of political speech with other important social values, it may well be open to applying the McCloytests, and in particular the questions of 'proportionality', to consideration of what is, after all, anexplicit constitutional freedom in s.116. In fact my colleague Dr David Tomkins, in a helpful overview of the McCloy decision, has suggested that indeed this is one direction that might be taken in the future. Such a balancing process, which gives weight to the importance of religious freedom and the need to only over-ride it in very limited circumstances, would in my view be a positive development."
This would involve a Court considering not only whether the aim to be achieved by the particular provision was a legitimate aim, but also whether the over-riding of any religious freedom considerations was a "proportionate" method of achieving such an aim. It would at least be a matter worth considering.
***
It is not known yet whether the offer of the various churches to provide sanctuary will be taken up, and if so what the attitude of the Commonwealth Government might be. It is worth noting that, while there does not seem to have been a strong tradition of this in Australia previously, other countries have experienced the phenomenon and dealt with it in different ways.
A very useful article by Sean Rehaag discusses the Canadian experience and some of the issues that subsequently arose. One interesting issue he raises is that, when offering sanctuary became a well-established practice, churches had to develop a "screening process" to decide who, among the many candidates, would be offered sanctuary. In doing so, as he points out, they often replicated the sort of process adopted by the Canadian government in deciding who should be granted refugee status.
These kinds of issues will need to be considered by Australian churches as well, should it become necessary to proceed in this direction.
The churches have been warned, both by legal experts and by the Immigration Minister, that they may face criminal sanctions if they go ahead with their proposals. They may respond that the law recognises their right to free exercise of religion, and that as a result they are not disobeying the law. They may accept that they are in breach of the law but choose to go ahead in obedience to a higher law.
Complex issues may arise as to who is to be offered sanctuary, and for how long, and whether this will undermine an overall policy which some see as more humane in the long term. But in any event, their willingness to risk their own comfort and safety for the rights of "little ones" who are loved by Jesus (Matthew 19:13-14) seems thoroughly commendable.
Neil Foster is Associate Professor of Law at the University of Newcastle. He blogs at Law and Religion Australia.
First published on 9th February 2016 at http://www.abc.net.au/religion/articles/2016/02/09/4403093.htm.