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When can the Government order an additional public holiday? – Employee Benefits & Compensation

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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:

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.

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.

On the Friday publicly observed as Good Friday.

On the day after Good Friday.

On the Sunday following Good Friday.

On the Monday following Good Friday.

On 25 April.

On the second Monday in June.

On the first Monday in October.

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.

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

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

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

On a

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

But apparently, the day before Footy Friday is perfectly

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

Criminal Cases
in the District Court of NSW

Part heard criminal
– 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

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

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

  • 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

  • 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

  • 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.


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


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
, 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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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