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Last updated: April 2010
Re-engagement of an unsuccessful election candidate
About re-engagement of an unsuccessful election candidate:
Generally an APS employee cannot be elected to a House of Parliament or Legislative Assembly and so a candidate for such an election must resign from the APS. The Public Service Act and Regulations do, however, provide that if such a person is unsuccessful in that election (and they meet the other tests prescribed in the legislation) that they may be re-engaged in the APS.
Public Service Act 1999
Section 32 of the Public Service Act 1999 provides rights of engagement to persons who resign from 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 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 following elections are covered by the Regulations:
- 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; and
- an election for a member of the Torres Strait Regional Authority, established under the ATSI Act.
The Regulations give a person to whom section 32 applies an entitlement to be engaged again 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 an election for a member of the Torres Strait Regional Authority under the ATSI 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 engaged again 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 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 appropriate to the 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 classification has changed since the person resigned, the changed terms and conditions.
- the period between the person's resignation and being engaged again 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 again.
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.
Any employee intending to contest an election who has doubts about this issue should be encouraged to seek private legal advice.
Reference archive
- Circular No 1993/4: Resignation to contest an election - Impact of the High Court decision in Sykes v Cleary and Others
- Circular No 2001/3: Supplementary Information for APS Employees Contesting Elections
- Circular No 2001/2: Requirements for APS Employees Seeking to Contest an Election
- Advice No 24: Miscellaneous Issues (as amended by 2001/2, 2001/3, 2002/10, 2004/1)
