Let the Asylum Seekers Stay: Strengths and Weaknesses of Church Sanctuary as a Strategy for Law Reform

In response to the decision of the High Court of Australia in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, over 120 churches from nine denominations around Australia began offering refugees and asylum seekers, at risk of being transferred to Nauru, physical protection from removal by Australian authorities and sanctuary in church buildings. This paper provides an analysis of the offer of church sanctuary in 2016 by Australian churches as a strategy for law reform. The offer of church sanctuary in 2016 should be seen as a partial success because it contributed to a number of asylum seekers and refugees being spared return to extraterritorial processing facilities. The success enjoyed by churches was due to the legitimacy derived from the theological and historical roots of the concept of sanctuary and the standing of churches in Australian society. Although churches were not successful in ending Australia’s extraterritorial processing regime, they continue to be engaged in resistance to Australian refugee law and policy. It is thus too early to determine if they can contribute to more substantive law reform in the long term.