Home page
> Archive > Circular 1993/4: Resignation to contest an election
> Employment policy and advice
‹ Previous page
Last updated: 6 February 1993
Circular 1993/4: Resignation to contest an election - Impact of the High Court decision in Sykes v Cleary and Others
This publication remains current but needs to be read taking into account the repeal of the old Act and the proclamation of the new Act
Campaign leave
The purpose of this memorandum is to advise departments and agencies of a recent High Court decision concerning public officials nominating for election to Federal Parliament and the availability of Campaign Leave during an election.
High Court decision in Sykes v Cleary and Others
2. PSC Circular No 1990/4 of 20 February 1990 drew attention to the provisions applying where an APS staff member wishes to contest a Federal or State election, and included advice on the circumstances under which re-appointment or re-engagement can occur pursuant to section 47C or section 82B respectively of the Public Service Act 1922.
3. On 25 November 1992, the High Court in Sykes v Cleary and Others (the Cleary case) held, by majority, 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.
4. It would appear from this 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. There is, however, no requirement under legislation for a staff member to resign to contest an election. Any staff member intending to contest an election who has doubts about this issue is encouraged to seek private legal advice on the matter.
5. Any queries on this issue should be addressed to Greg Bunnett on (06) 272 3519.
Campaign leave
6. The Department of Industrial Relations has advised that Campaign Leave will continue to be available to staff in accordance with sub-clause 2.3.14 of Public Service Board Determination 1983/10. The contact officer in relation to this matter is Rebeca Radhakrishnan on (06) 243 7616.
Peter Miller
Acting Assistant Commissioner
People Management and Deployment Branch
6 February 1993
