Australia Day is celebrated as the official national day and is marked by national celebrations, community and family events, and citizenship ceremonies. For many Australians it is a day to celebrate a rich and diverse culture made more so by the contributions to the national fabric by many recent migrants and people of overseas descent. Some arrived voluntarily and some as convicts. Nevertheless, for many, it is seen as a celebration of the history of Australia.

However, the significance of the day we know and call ‘Australia Day’ has been contested previously. More recently, there have been calls from some Australians to ‘change the date’. Primarily, this stems from the view that January 26 represents a day of invasion, oppression, and dispossession. The argument is that on January 26 1788, Captain Arthur Phillip landed in Sydney Harbour and proclaimed Sydney Cove and Botany Bay for the British Crown, thus beginning the invasion of Australia.

January 26, 1788.

On that date, the First Fleet encountered gale force winds and rough seas. The fleet sailed from Botany Bay through the headlands and into the shelter of Sydney Cove. HMS Supply landed at Sydney Cove with Captain Arthur Phillip, a contingent of marines, and 40 convicts. Ground was cleared for an encampment and the Union Flag was raised. It is on this basis then, that a small number of Australians have suggested that the invasion took place officially on this date.

The records of Captain Arthur Phillip actually indicate the formal establishment of the colony of New South Wales did not occur until February 7, 1788. That day saw the formal proclamations of the governorship of Captain Arthur Phillip. Simultaneously, February 7, 1788, saw the vesting of all lands to the then reigning monarch, George III.

Another event took place some 18 years earlier at Botany Bay in an area known as Kurnell, in New South Wales. There is an alternative view that the invasion of Australia occurred with the arrival of Lieutenant (later Captain) James Cook on April 29, 1770. His logs record an altercation with the local indigenous peoples when the crew of HMS Endeavour landed to replenish their supplies. Proponents of this have argued that this is the real day of mourning and the true day of invasion. It could be asserted that there is as much credibility to a date of April 29 as Australia Day as there is to January 26. Either day could be considered to be invasion day.

1788 to 1946.

During this period of time, no great significance was accorded to the date of January 26 (or indeed, even April 19) as an ‘Australia Day’. There is no record of national events to celebrate January 26 as a national day of celebration. In New South Wales the day was a uniquely state affair with picnics, family gatherings, and regattas.

Australia was coming out of the ravages of a second world war after 1945, and there was a national mood for Australia to continue to define itself as being a people responsible for its own laws and destiny. Up to this time, Australians were considered to be ‘British Subjects’. Given the war experiences of the Australian military and the government, there was an impetus for change. Australia and Australians were looking to forge their own place in a global order that they had fought for.

In 1946, Commonwealth and State governments agreed to an ‘Australia Day’. However, even then, no formal date was selected. This was soon to change.

Frederick Chetcuti v Commonwealth of Australia [2021] HCA 25.

Mr Chetcuti was born in Malta on August 8, 1945, and arrived in Australia on July 31, 1948. He was a ‘British Subject’ (similar to all Australians at that time) and was deemed to be so under Australia’s Nationality Act 1920 (Cth). He retained that status up to and including the enactment of the Australian Citizenship Act 1948 (Cth). 

In 2017, a decision was made to cancel his visa under the Migration Act after he served a term of imprisonment of 24 years, having been convicted of murder in 1993. He was further detained with an intention to deport him back to Malta. Chetcuti challenged his deportation on the grounds in 1949 he was a British Subject having allegiance to the Imperial Crown. He further argued that he was not an alien under the Nationality Act 1920 (Cth).

On 12 August 2021, by a majority, the High Court held that the conferral of citizenship was set out in the Australian Citizenship Act 1948 (Cth). This Act was legislated in 1948.

The commencement date of this Act was January 26, 1949.

The problem for Mr Chetcuti was that he did not avail himself of becoming an Australian citizen after that date. He was not an alien prior to January 26, 1949, but he became one thereafter.

It is noteworthy that the Australian Citizenship Act 1948 (Cth) provided for Australian citizenship by birth, descent, and a grant of citizenship and a process to gain Australian citizenship. Prior to the commencement of this Act, all natural-born Australians had the status of British Subjects. Post January 26, 1949, all natural-born Australians were now Australian citizens and had Australian nationality.

There is a substantial argument that January 26 should be celebrated as Australia Day.

Indigenous Australians. 

Under the Nationality Act 1920 (Cth), all Aboriginal and Torres Strait Islanders born after January 1, 1921 gained the status of ‘British Subjects’. With the commencement of the Australian Citizenship Act 1948 (Cth), they automatically became Australian citizens on January 26, 1949, similar to all other natural-born Australians.

This paper has briefly traced the history of what we Australians have come to know and understand as ‘Australia Day’. From 1788 to the present there have been gaps in understanding and celebration of this national day. It was not until 1994 that it was agreed by all states and territories that there should be consistency in Australia Day celebrations. The formalities of citizenship conferral and community celebrations would be consistent throughout Australia. However, the voice to change the date of Australia Day has been growing louder. Whilst this is predominately from a minority group of Australian society, a small cohort of politicians are feeling the need to be aware of and to heed their concerns.

Controversy continues to dominate the celebration of Australia Day. It has been described as a day of mourning, a day of infamy, and equally as emotive, Occupation Day, Survival Day, and Invasion Day. Even some moderate Australians are advocating to ‘change the date’. If so, the question arises as to which date? There are a number of dates that may qualify as has been described in this paper. Doubtless, those who support a change of date of Australia Day may have other relevant dates, if such a day is to be celebrated at all. These matters will be debated and a decision may be made if sufficient weight is given to community expectations from a small percentage of the Australian community. What is not in any doubt, is that on January 26, 1949, as supported by the High Court of Australia in the case of Frederick Chetcuti, Australians advanced from the status of British Subjects and became Australian citizens. There is clearly a strong legal and social argument that theJanuary 26 is legitimately Australia Day and should remain to be celebrated as such.

Lionel Rodrigues. MFinPlan, LLM.