All your niggling questions about January 26 answered

All John Howard ever wanted was for us to be relaxed and comfortable, to celebrate Australia Day watching a day-nighter at the ‘G, sipping a local brew in an Australian flag-adorned stubby holder, with the Triple J Hottest 100 on the speakers and snags quietly charring on the barbie.

How sad the former PM must feel these days, his legacy devolved into an annual brawl over — of all things — the date. If we can’t all feel good celebrating the day that Captain Cook completed his circumnavigation of the continent and planted the British flag on Uluru, what has become of Australia?

Fair question, but what about — as Peter Dutton would insist — the detail? Allow me to answer the questions that burn.

My employer is advocating to change the date. Can they force me to work on January 26?

No. It’s a gazetted public holiday, and you cannot be forced to work (if you’re in a regular weekday job — there are exceptions, of course).

I want to work on January 26. May I, and may I ask for a day off in lieu?

Your employer is not obliged to pay you for working on a public holiday that they didn’t ask you to work, nor to give you a day in lieu. 

Can we all get together at work and agree to change the date for ourselves?

Sure you can, provided your employer agrees too.

Is it true that Australia Day is in the constitution?

Nope.

OK, what law says it has to be on the 26th?

Public holidays are a matter for state and territory law, not federal law. Each state and territory has its own act of Parliament specifying the dates of the public holidays observed in that jurisdiction. They each say that the Australia Day public holiday is on January 26, or the next Monday if the date falls on a weekend.

I heard it hasn’t always been on that date

Correct. Australia Day was not celebrated on January 26 1789. For one thing, there was no Australia until 1901. NSW started celebrating January 26 — the date that Arthur Phillip planted the flag at Sydney Cove and drank to the king’s health — by 1808. It was a date of no significance to the other colonies (Victoria, Queensland, etc) which were founded later.

It wasn’t until 1935 that all the states were celebrating January 26 as “Australia Day” (except NSW, which continued calling it “Anniversary Day”). In 1946 the state governments agreed with the commonwealth to have a national public holiday on that date.

Still, there was no such thing as an Australian citizen until 1949; before that, we were all British subjects.

And, as it turned out, it wasn’t until 1994 that the Australia Day public holiday finally became a legislated thing in every state and territory.

Can it be changed? How?

Yes, and quite simply. Public holidays are a matter for each state and territory. They can unilaterally change it, as easily as they made it. It just requires an amendment to the relevant legislation, passed by the relevant parliament.

While it makes sense — aesthetically and to avoid embarrassing ourselves — for our national day to be the same across the nation, there is nothing to stop a more progressive state or territory government from making the change. In political reality, if the popular movement to change the date continues to gain force, it may be that that is what’s required to shift the dial. On big progressive reforms, politicians always trail way behind the people.

But really, what’s the big deal?

You may be surprised to know that it’s really unusual for a country to choose as its national day the date on which it started being turned into a colony of a foreign state, by force. That’s the most benign way I can put it. Most countries celebrate the opposite: the day they achieved independence from their foreign overlords.

So, putting aside the more emotive arguments (to which I also subscribe) and applying a dispassionate lawyer’s perspective to the question, it is plainly irrational to celebrate, as our national day, the date when the English arrived — with boatloads of convicts — and planted NSW on top of already occupied land.

Mind you, if we come around to the idea of moving Australia Day to the date when Australia achieved true independence — when it was no longer ruled by a foreign head of state — that date hasn’t arrived yet.

Is it time, finally, to change the date? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.