Circular No 2001/3 : Supplementary information for APS employees contesting elections

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On 23 July 2001, PSMPC Circular 2001/2 reminded agencies of the requirement 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. This provision was the subject of litigation in the High Court. It appears from the decision that a staff member who does not resign from the APS before nominating for election to the Federal Parliament would be incapable of being chosen or of sitting as a Senator or a Member of the House of Representatives. Therefore, it would be expected that any APS employee intending to contest a federal election would resign from the APS before the closing date for nominations.

This Circular has two purposes:

to provide supplementary information for APS employees who wish to contest an election in the Australian Capital Territory (ACT) or South Australia-these jurisdictions are due to hold elections in the near future; and
to highlight the importance of the APS Values in these circumstances, particularly Value (a) requiring employees to be apolitical and impartial.

Contesting an election in the ACT or SA

ACT election

2. We have received advice from the ACT Electoral Commissioner that will supplement the information in Circular 2001/2 with regard to APS employees who wish to contest an election for the ACT Legislative Assembly. That advice is as follows.

A person who holds public office or employment is eligible to be nominated under the ACT's Electoral Act 1992 but is not eligible to be an MLA. Therefore, a candidate who holds public office or employment should resign from that office or employment before the official declaration of the election result after polling day if, following the counting of votes, that candidate is to be declared elected. Any public office holders or public servants considering contesting an election are advised to seek their own legal advice on their particular circumstances. In addition, advice should be sought from the relevant employer or service as to whether such a potential candidate is under any obligation to take leave or to resign his or her office or employment under the relevant conditions of service.

South Australia

3. Advice from the South Australian Electoral Office is as follows.

The SA Constitution Act precludes any officer or employee of the Crown from being elected to the South Australian Parliament. The Act states that the resignation of a public servant must be effective before the date of declaration of the poll.

Entitlements of APS employees who resign

4. An APS employee who resigns in order to contest any election to a State or Territory Parliament (the resignation taking effect not earlier than 6 months before the closing date for nominations) and is unsuccessful in being elected is entitled to be again engaged as an APS employee, if the person applies to the Agency Head within the time prescribed by the Regulations (s32, Public Service Act 1999). Any APS employee intending to contest an election who has doubts about this issue should be encouraged to seek their own legal advice.

Application of APS Value (a) requiring employees to be apolitical

5. Under the Public Service Act 1999 Agency Heads and APS employees are required to uphold the APS Values. Agency Heads have the additional responsibility of promoting the Values. Value (a) states that 'the APS is apolitical, performing its functions in an impartial and professional manner'. Public Service Commissioner's Direction 2.2 (2) states (in part) that 'an employee mustÉ help to ensure thatÉthe same high standard of policy advice and implementation, and the same high quality professional support, is provided to the elected Government, irrespective of which political party is in power and irrespective of the employee's political beliefs.'

6. It is likely that an APS employee who is seeking election, whether in a Federal, State or Territory election, or other election prescribed in regulation 3.13, could be, or could be perceived to be, in a situation that:
- is incompatible with Value (a); and
- may be in contravention of Commissioner's Direction 2.2(2).

7. To resolve the incompatibility, it would normally be appropriate for the employee to take leave, for the duration of the election campaign, or to resign. It will be up to agencies to determine, in consultation with the employee, the appropriate timing of the leave or resignation, taking into account the employee's current duties and the level of their political activity. Ultimately a judgment will need to be made as to whether - and the extent to which - the employee's impartiality is compromised by continuing to undertake their duties, while, at the same time, taking active steps to contest an election.

8. Agency Heads may therefore wish to consider whether their current agency guidelines provide adequate advice to employees on how the APS Values might be upheld by employees who are contesting an election. Decisions about the need to take leave or resign - in order to resolve incompatibility with the Values - are quite separate from the legal requirements of the Commonwealth Constitution or relevant State or Territory Electoral Acts which require the employee to resign from the APS at particular points in the electoral process. Further information

9. 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

September 2001

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

September 2001