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When it's right to break the law

  • 18 February 2016

Offering sanctuary to women and children seeking protection from despatch to Nauru would break the law. That is a fact. The important question is whether it would be right to break the law. In healthy democracies this question is frequently raised.

In any society it is common for people to break the law and disobey lawful instructions. People fail to move on when instructed by police, evade tax, drive too fast, keep silent about abuse in churches, speak out about abuse in detention centres, trespass on military facilities, and drive when drunk. All break the law and, if caught, face sanction.

Many people assert that it is never right to break a law duly enacted by the government. From this principle it follows that anyone offering sanctuary to people who seek protection in Australia is acting wrongly.

This blanket condemnation of law breaking, however, runs against our inherited moral tradition. We honour many people who disobeyed the laws of their country. They may include Christian martyrs who disobeyed Roman law compelling them to worship the Emperor, Hans and Sophie Scholl who distributed anti-war leaflets in Nazi Germany, and the many in occupied Holland who harboured Jewish families.

These people appealed to a higher law that trumped laws enacted by their rulers. Because the laws were unjust they believed it was right to break them. And we salute them.

The argument for disobedience to unjust laws was made even more strongly at the Nuremberg trials following the Second World War. Nazi officials were condemned for crimes against humanity, despite pleading that they were obeying the law and lawful instructions. The tribunal decisions declared disobedience to Nazi laws not only legitimate but obligatory.

The implicit conclusion to be drawn from these examples is that we must obey just laws, but that we may, and sometimes must, disobey unjust laws. To say that a law is duly enacted is not enough to command our obedience. The law must also be just.

So when considering the case of offering sanctuary to people who seek protection we must ask first whether the law prohibiting this action is just. If we find the law to be unjust, then we may ask under what circumstances it would be justifiable to contravene it.

Those who offer sanctuary argue that the policy that allows women and children to be sent to Nauru is unjust. It involves doing harm to vulnerable human beings who have done no wrong