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Last updated: 29 April 2008
Circular No 2001/2 : Requirements for APS employees seeking to contest an election
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
Relevant information on this topic is now contained in Appendix F of the Commission's booklet Ongoing Employment, which can be accessed through this website. You should also refer to circular 2001/3 for additional relevant information.
The purpose of this Circular is to remind agencies of the requirements of the Constitution and of the Public Service legislation regarding APS employees who wish to contest a federal, state or territory election.
The legal situation in brief
Section 44 of the Constitution provides that any person who holds an office of profit under the Crown shall be incapable of being chosen or of sitting as a Senator or a Member of the House of Representatives. A 1992 High Court decision (Sykes v Cleary and Others) found that Mr Cleary's election to Parliament was invalid because he had not resigned from his Victorian Public Service position before nominating for the seat. The consequence of this decision is that APS employees who intend standing for election to Parliament must resign from the APS before the closing date for nominations.
The Public Service Act 1999 provides that where APS ongoing employees resign in order to contest an election and are unsuccessful in being elected, they are entitled to be again engaged as APS employees, in accordance with the regulations and within the time limits prescribed by the regulations.
Detailed information is provided in the attachment to this Circular (see below) . Any employee intending to contest an election who has doubts about this issue should be encouraged to seek private legal advice.
Further information
If you have any questions about the Circular, please contact the PSMPC Helpline on telephone (02) 6202 3859 or email employmentadvice@apsc.gov.au.
Jeff Lamond
Team Leader
Staffing, Structures and Performance Team
July 2001
Jenny Harrison
Team Leader
Values, Conduct and Diversity Team
July 2001
Attachment : APS employees who resign before contesting an election
Public Service Act 1999
Section 32 of the Public Service Act 1999 provides rights of engagement to persons who resign from ongoing employment in the APS in order to contest an election in accordance with Public Service Regulations 3.13, 3.14 and 3.15.
A person is entitled to be engaged as an APS employee if:
- the person resigned in order to contest an election which is prescribed by the Regulations;
- the resignation took effect [prior to the closing date and] not earlier than 6 months before the closing date for nominations for the election; and
- the person was a candidate at the election but failed to be elected.
The requirements, including time limits, to be met by persons seeking to exercise the right of return are set out in the Regulations.
The Regulations prescribe the following elections:
- an election for a member of a House of the Parliament of the Commonwealth or of a State;
- an election for a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory;
- a zone election under Division 7 of Part 3 of the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act); and
- an election for a member of the Torres Strait Regional Authority, established under section 142 of the ATSIC Act.
The Regulations give a person to whom section 32 applies an entitlement to be again engaged as an APS employee if, within the 'required time', the person applies to the Agency Head of the agency in which the person was last employed.
The Regulations define 'required time' as follows:
- for a person who contested an election and the result of the election is not disputed, 2 months after the declaration of the result of the election; and
- for a person who contested an election the result of which is disputed:
- if the election was an election for a member of a House of the Parliament of the Commonwealth or of a State; or an election for a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory, 2 months after a court of disputed returns decides the petition disputing the result, or the petition is withdrawn or lapses; and
- if the election was a zone election, or an election for a member of the Torres Strait Regional Authority, under the ATSIC Act, 2 months after the Federal Court of Australia makes a final decision on the petition disputing the result, or the petition is withdrawn.
The Regulations provide that, where a person is entitled to be again engaged as an APS employee under these provisions:
- the person must be engaged on the same basis (i.e. ongoing etc.) as the person was engaged prior to resigning to contest the election;
- the person must be engaged at the same classification that the person had before resigning to contest the election (the previous classification);
- the person must be assigned duties that are the same as, or similar to, the duties the person had before resigning to contest the election or, if such duties are unavailable, other duties at the previous classification;
- the person must be engaged on:
- the same terms and conditions of employment that applied to the person when the person resigned; or
- if the remuneration, or another term or condition, applying to the person's previous classification has changed since the person resigned, the changed terms and conditions; and
- the period between the person's resignation and again being engaged as an APS employee counts as service as an APS employee for the accrual of leave entitlements.
In the case of non-ongoing employees, where the person was engaged for a specified term or the duration of a specified task and at the time the person applies to be (re)engaged, the term (including any extension of the term) has expired or the task has been completed, the person is not entitled to be engaged.
In addition to the PS Act provisions, Agencies should also note the High Court decision in Sykes v Cleary and Others (the Sykes case) concerning public officials nominating for election to Federal Parliament.
On 25 November 1992, a majority of the High Court in the Sykes case held that the election of Mr Cleary to the seat of Wills was invalid because it was in breach of section 44 of the Constitution (which provides that any person who holds an office of profit under the Crown shall be incapable of being chosen or of sitting as a Senator or a Member of the House of Representatives). The facts were that Mr Cleary failed to resign from the Victorian Public Service before nominating for a seat in the Federal Parliament.
