[Anglican Communion News Service] Churches in Australia are offering to test the common law principle of sanctuary after the country’s High Court ruled that it was lawful for the government to return some 270 asylum seekers – including almost 40 children – to off-shore detention camps on the island nation of Nauru and on Papua New Guinea’s Manus island.

The primate of Australia,Archbishop of Melbourne Philip Freier, has argued that just because the government can return refugees to the islands, it doesn’t mean that it should return them.

The test case was brought by a Bangladeshi woman who had been held on Nauru after being caught trying to enter Australia by boat. She was taken to Australia for medical treatment while she was pregnant and gave birth to her child there. But in the test case she challenged the government’s right to return her to Nauru, saying this was in breach of Australia’s constitution.

The High Court rejected her claim, saying that off-shore detention of illegal migrants was not in breach of the law; but the judges said that such detention should not be indefinite.

Responding to the judgment, Freier, along with his assistant bishops Philip Huggins, Genieve Blackwell and Paul White, issued a statement calling on the government to “change the narrative on children in detention.”

Huggins chairs the Anglican Church of Australia’s Working Group on Refugees. With the other bishops, he said: “The fact that a legal determination has been made does not require the Government to act to return women and children to off-shore detention.

“No reasonable Australian wants to encourage people smugglers in any way, but it is simply morally unacceptable to leave children to languish in appalling conditions in off-shore detention centers. If the nation can agree on these two principles, surely it is not beyond us to find a solution.”

Some Anglican clergy have gone further and are offering to provide sanctuary for the refugees in their churches. This is based on the old English common law principle that fugitives would be free from arrest when within the confines of a church. The legality of sanctuary was removed from the Common Law in England in 1624; but is still sometimes observed out of tradition or respect for the religious establishment.

The validity of the right of sanctuary in Australia is unknown.

“Many of us are at the end of our tether as a result of what seems like the government’s intention to send children to Nauru,” the Dean of Brisbane, the Rev. Dr Peter Catt, told ABC News. “So we’re reinventing, or rediscovering, or reintroducing, the ancient concept of sanctuary as a last-ditch effort to offer some sense of hope to those who must be feeling incredibly hopeless.”

In a statement reported by BBC News, Catt added: “This fundamentally goes against our faith so our church community is compelled to act, despite the possibility of individual penalty against us. Historically churches have afforded sanctuary to those seeking refuge from brutal and oppressive forces.”

The Archdeacon of the Central Coast, the Venerable Rod Bower, is well known for his controversial billboard messages outside his Gosford Parish Church. He used the board to announce that it would offer sanctuary to those facing deportation to the off-shore detention centers; and he took to Twitter to liken the government’s policy to that of Nazi Germany.

In one Tweet, he said: “Can’t deny the similarities to Nazi Germany”; and in another he said: “Civil disobedience becomes a sacred duty when the state has become lawless or corrupt.”

Responding to the growing offers of sanctuary, the archbishop and his three assistant bishops said that “the Anglican Church in Melbourne – and nationally – will continue to support asylum-seekers and refugees with services and advocacy and spiritual help. The church and its welfare agencies have long had considerable involvement in resettling refugees and helping them build a life in Australia.

“We applaud the motives of those Christian churches who intend to test the ancient common law notion of sanctuary, but our churches are not equipped to provide temporary accommodation. A better answer would be for Mr Turnbull [Malcolm Turner, the Australian Prime Minister] to exercise compassion and moral principle and allow the asylum-seekers to remain in Australia as the processes unfold.”

But the court’s decision was welcomed by the Australian government. Prime Minister Malcolm Turnbull said: “Our commitment today is simply this: the people smugglers will not prevail over our sovereignty. Our borders are secure. The line has to be drawn somewhere and it is drawn at our border.”