Common(wealth) Knowledge #97: Organising Australian Public Holidays

Not all public holidays are created equal.

Easter is one of the four biggest holidays in Australia. Although all states and territories celebrate Easter at the same time, many of Australia’s public holidays are not held simultaneously.

Throughout the Western world, Easter and Christmas are generally considered to be the two biggest holidays each year, and have transcended their religious origins. However, most pre-Easter celebrations and events celebrated by Christian denominations, such as Lent and Palm Sunday, have not done so.

The two biggest Australia-specific holidays are Australia Day and ANZAC Day, which surpasses Remembrance Day because of how important the national spirit forged at Gallipoli is to Australia.

However, outside of those five, except for New Year’s Eve and Day, there is no set day for other public holidays.

Different states and territories will have specific public holidays that it makes sense for them to organise individually, like show holidays, but others are less clear.

The best examples of disagreement over public holidays are Labour Day and the King’s Birthday. Tasmania does not celebrate Labour Day as a public holiday, while Queensland and Western Australia celebrate the King’s Birthday at different times of the year, compared to the other states and holidays.

Another example is National Sorry Day, held at the same time every year, but no government recognises it as a public holiday. But immediately following it is Reconciliation Day, which is a public holiday in the Australian Capital Territory.

So who gets to decide when public holidays are held, and who decides what events get to become public holidays?

There is no denying that the Commonwealth government has some power when it comes to nationwide commemorations and celebrations.

In Davis v Commonwealth in 1988, the High Court was asked to consider whether the Australian Bicentennial celebrations were the jobs of states and territories, or if they were the responsibility of the Commonwealth government.

Chief Justice Mason and Justices Deane and Gaudron recognised an ‘implied nationhood power’ that existed because of the very nature of a federal system:

“Cleary [the states] have such an interest and such a part to play … [but] it cannot be allowed to obscure the plain fact that the commemoration of the Bicentenary is pre-eminently the business and concern of the Commonwealth as a national government and as such falls fairly and squarely within the federal executive power.”

Justice Brennan went further, by claiming this as a justification for the Commonwealth government being responsible for determining what flags should be allowed for use and how they should be displayed.

At first glance, this might reasonably suggest that the Commonwealth should have control over public holidays.

However, the court agreed that the actions taken under this power must be proportionate and necessary.

Unsurprisingly, this is the same test later applied to the implied freedom of political communication.

Both the infringement of political communication and the use of the nationhood power only arise when there is no other reasonable alternative.

With this in mind, the Commonwealth, states, and territories have entered into an intergovernmental agreement for public holidays.

This invokes the implied freedom balance test. Does the national nature of the celebration outweigh the need for upholding the integrity of state and territory governments’ powers?

For national events like ANZAC Day, some national coordination is needed, partly because these celebrations involve the armed forces of Australia, which are the responsibility of the Commonwealth government. Additionally, only the Commonwealth government, with its external affairs power, can run overseas ANZAC Day events.

When it comes to Easter, less national coordination is needed, but common custom and practice, including by Christian communities, means that Easter celebrations are set events, with these customs continuing in secular celebrations, because it has become so ingrained in Australia.

The final tier is the events with no nationally-recognised days. Often, these celebrations are run by non-governmental organisations, or with coordination between those organisations and the government, such as Conciliation Day and show holidays. This is also necessary because states and territories have different school calendars.

The legislation governing each state or territories’ public holidays can be found on their parliamentary websites, such asPublic Holidays Act 2010 (NSW) and Holidays Act 1983 (Qld).