The Greens seize on legal advice that the Morrison government’s new code may be unlawful

This article is more than 1 year old

This article is more than 1 year old

Greens councillors have seized on advice that federal rules mandating citizenship ceremonies on Australia Day may be unlawful, calling on the Local Government Association to consider legal action.

Tim Walker, of Launceston council, and Bill Harvey, of Hobart council, told Guardian Australia the local government peak body should consider acting on the view of the academic Kim Rubenstein to advance the campaign to change the date of Australia’s national holiday.

On Friday the immigration minister, David Coleman, released a new code governing citizenship ceremonies, requiring councils to hold them on 26 January, despite a growing number of councils seeking to avoid the date out of respect for Indigenous Australians who note it commemorates the invasion of Australia.

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The Turnbull government sought to suppress the movement by banning Yarra and Darebin councils in Melbourne from holding citizenship ceremonies through special regulations.

Unlike those regulations, the new code is not disallowable by the Senate, allowing the executive to set rules for ceremonies without oversight from the parliament.

On Tuesday, Rubenstein questioned whether that could put the code in breach of the Australian Citizenship Act, which requires citizenship pledges to be governed by arrangements prescribed in regulations.

“If they’ve just added in this policy that says ‘if you’re going to change Australia Day, we will consider not authorising you to have these ceremonies’, then there are real questions around whether the code is properly made within the terms of the act,” Rubenstein told The Australian.

Rubenstein questioned whether the federal government is using policy to “regulate when Australia Day is” and “prevent councils from the raising of the political issue of when Australia Day should be” which could be outside the purpose of the Act.

“In a more extreme sense, is that restriction on councils a breach of the implied freedom of political communication, which is a constitutional principle?

“The only way we would know is if one of the local councils­ went ahead and said ‘we’re going to do this anyway’ and then, when the government revoked their power to hold citizenshi­p ceremonies, that council would have the ability to challenge that decision.”

Harvey said Hobart council had been deterred from moving its ceremonies from 26 January by advice warning the home affairs department could refuse to send it the names of new citizens, preventing it holding any ceremonies.

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He noted the Local Government Association had passed a motion in 2017 encouraging councils to consider efforts they could take to lobby the federal government to change the date.

“Yes, I think they should have a look [at the lawfulness of the code]. If they’ve got the resources they should challenge it,” he said.

Walker said Launceston council had unanimously supported refusing to hold citizenship ceremonies on 26 January but now accepts that the “churlish” threat to remove its right to hold ceremonies means “if it is mandated, we would continue to hold them on 26 January”.

Walker welcomed Rubenstein’s contribution, suggesting that the legal argument is one part of a broader campaign for “cultural justice” and “the federal government will find they are on the wrong side of history, if they have to force people to celebrate a day they find offensive”.

Walker accused the LGA of passing the resolution then “sitting on it”, suggesting it “may be appropriate” for it to bring a legal challenge.

A spokesman for the LGA rejected the calls, suggesting any potential legal challenges were “a matter for individual councils”.

The Greens immigration spokesman, Nick McKim, said the Coalition is “trying to work around parliament to override the decisions of democratically elected councils”.

“All over the country, local councils are having important conversations with First Nations people about how to make ceremonies more inclusive and representative,” he said.

“If local councils decide not to conduct citizenship ceremonies on January 26, then that should be the end of the matter.”

A spokeswoman for Coleman said the code is a “policy document which outlines the requirements for Australian citizenship ceremonies” and did not respond to questions about whether it is appropriate for these to be outside regulations.