When Can the Government Order an Additional Public Holiday?

It is well-known that pursuant to section 5 of the  Public Holidays Act 2010 (NSW), and equivalent state and territory legislation across the nation, a public holiday has been declared for Thursday, 22 September 2022 to mourn the death of Queen Elizabeth II. 

What are the standard public holidays in New South Wales?

The standard public holidays in NSW and provisions when they fall on a weekend are contained in section 4 of the Act, and are as follows:

• New Year’s Day

1 January. When 1 January is a Saturday or Sunday, the holiday will occur on that day and an additional holiday will occur on the following Monday.

• Australia Day

26 January. When 26 January is a Saturday or Sunday, no public holiday will occur on that day and will instead occur on the following Monday.

• Good Friday

On the Friday publicly observed as Good Friday.

• Easter Saturday

On the day after Good Friday.

• Easter Sunday

On the Sunday following Good Friday.

• Easter Monday

On the Monday following Good Friday.

• Anzac Day

On 25 April.

• Queen’s Birthday

On the second Monday in June.

• Labour Day

On the first Monday in October.

• Christmas Day

On 25 December. When 25 December is a Saturday, the holiday will occur on that day and an additional holiday will occur on the following Monday.

When 25 December is a Sunday, the holiday will occur on that day and an additional holiday will occur on the following Tuesday.

• Boxing Day

On 26 December. When 26 December is a Saturday, the holiday will occur on that day and an additional holiday will occur on the following Monday.

When 26 December is a Sunday, the holiday will occur on that day and an additional holiday will occur on the following Tuesday.

When can the government declare an additional public holiday?

Under section 5 of the Act, titled ‘Additional public holidays’, the Minister for Employee Relations, currently Damien Tudehope, may, by way of an order published on the NSW legislation website, declare a specified day or part of a day in a particular year to be a public holiday. 

The order may declare the holiday for the whole State or a specified part of the State.

The order must, however, be published at least 7 days before the holiday.

The Minister also has the power to cancel the holiday, provided this decision is published on the NSW legislation website at least 7 days before day.

The government has no legal obligation to subsidise or compensate business owners or others that may be affected by the decision.

Welcomed by most, but not all

While most Australians will be delighted to have a paid day off, the fact is the costs will be borne by small businesses already struggling from the effects of COVID-19 shutdowns, that those with court on that day will face further delays – together with the additional stress and anxiety of waiting for their cases to be heard – and that already-backlogged court lists will need to accommodate for thousands of cases listed across the state on that day. 

On a Thursday

In that regard, Thursdays are busy days for NSW Courts, traditionally far busier than Fridays or Mondays, and thousands of offices and other businesses across the nation are in full swing for the week, rather than starting up or winding down. 

But perhaps it would not have been appropriate for a day of mourning to coincide with Footy Friday – the Victorian public holiday for the AFL Grand Final, or Monday, which is the Queen’s birthday holiday in Western Australia.

The situation prompted one observer to state:

“In Victoria we’ve got a Footy Friday, meaning Thursday and Friday off”

The man complained:

“It’s a long weekend that’s as long as Easter and we haven’t had the chance to plan for it.”

He added that it is an “unfortunate irony” that in Western Australia, the Queen’s Birthday falls on the following Monday.

But apparently, the day before Footy Friday is perfectly acceptable.

In any event, here’s how the “National Day of Mourning for Her Majesty The Queen” will affect the District, Local and Children’s Courts of New South Wales and their participants:

Criminal Cases in the District Court of NSW

Part heard criminal matters  – including partly-heard sentencing hearings and appeals such as – will be vacated (cancelled) and a new date set – which could be several weeks if not further away. The court registry will contact all parties to make alternative arrangements. Where a person is in custody, the judge’s associate will contact the court registry to issue new warrants to have them appear in court.

Administrative court dates such as ‘mentions’ and call overs – which are dates to determine the status of cases, ascertain pleas and make orders in the lead-up to trials will, however, be brought a day forward to Wednesday 21st September. 

Criminal Cases in Sydney District Court (Downing Centre)

Cases listed in Downing Centre District Court will be brought forward for mention in courtroom 3.1 on Wednesday 21 September 2022 or on another earlier date suitable to the List Judge or Resident Judge. 

All parties will be contacted by the court and advised of new arrangements. 

Criminal Cases in other NSW District Courts

The Chief Judge of the District Court of NSW, Derek Price, has recommended that other District Courts endeavour to bring administrative court dates forward in a manner similar to the Downing Centre; although, this will depend on the capacity of those courts and whether this is viable.

Civil cases in NSW District Courts

The Judicial Registrar will notify the parties in Notices of Motion and other matters in the Online Court listed in Sydney on the public holiday of new dates.

Part Heard Civil Matters

Cases which are part heard and have been adjourned to re-commence on 22 September 2022, will be contacted by the court to arrange a new date which, again, could prolong matters for several weeks, if not more.

Public Holiday Bail Court

A Bail Court will operate at the Children’s Court at Parramatta, in the same way that this court does on weekends, and will be staffed by Acting Magistrates.

The court will hear all bail applications for those freshly taken into custody.

Downing Centre Local Court

The arrangements at the Downing Centre Local Court are as follows:

• Special fixture hearings (which often last several days) that have already commenced will continue but will not sit on 22 September;

• Special fixtures with their first day on 22 September will commence on 23 September;
• Part heard matters will be adjourned for mention in either the week of 26 September or 4 October;
• Matters listed before the court where the Magistrate is to determine whether the hearing will proceed will be adjourned for mention in either the week of 26 September or 4 October
• Custody matters already listed will be listed on 23 September;
• DPP matters listed on 22 September will be relisted on 20 September; and
• All matters for mention will be relisted in either the week of 26 September or 4 October.

All other Local Courts

• Part heard matters listed for finalisation on 22 September 2022 should be listed for mention only in the week commencing 26 September 2022.
• Parties in matters listed on 22 September for hearing should also be listed for mention only in the week of 26 September in order to fix a hearing date;
• All matters listed for mention or sentence should be relisted for the week beginning 26 September and 4 October 2022. Priority should be given to matters where the defendant is in custody.

Children’s Court

Matters will be re-listed and all parties will be advised of new dates. 

Coronial jurisdiction 

Where necessary, parties involved in Coronial Inquests will be contacted by the court. However, the current inquiry into the 2019 to 2020 Bushfires before Magistrate O’Sullivan expects little impact by the public holiday. 

The Directions Hearing before Magistrate Grahame, which was to be listed for 22 September, will be rescheduled.  

The Drug Court of NSW

Parramatta and Sydney Drug Courts will be affected by the public holiday, and list matters will be re-listed for either the 19th of September, or 29th of September. Parties will be advised of new dates and times. 

Check with the court website 

All of these updates are available on the Local Court and District Court websites, and anyone affected is advised to double check information with the court they are due to attend by telephone/ email, or by speaking with their legal representative. 

 The National Day of Mourning is not a re-occuring public holiday. There will be an Australian National Memorial Service at 11am in the Great Hall of Parliament House in Canberra, which will be broadcast live. 

The federal government will not subsidise or provide any other monetary compensation for the additional expense incurred by the day of mourning; meaning small business including law firms already suffering from the effects of COVID restrictions will need to bear the costs of the day.