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Last updated: : 22 December 2004
Ongoing employment – Recruitment and related issues
Appendix F: Right of return for election candidates
Section 32 provides rights of engagement to people 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 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 people 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)
- an election for a member of the Torres Strait Regional Authority, established under section 142 of the ATSIC Act
- 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 'relevant authority'. 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;
- 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Territory, 2 months after a court of disputed returns decides the petition disputing the result, or the petition is withdrawn or lapses; and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;
- define 'relevant authority' as follows:
- if the Agency in which the person was employed when the person resigned still exists—the Agency Head of that agency; or if the functions to which the person's duties related, or mainly related, have been transferred to another agency—the Agency Head of that agency; or
- in any other case—the Public Service Commissioner.
- 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 before 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
- the continuity of the person's service is taken not to have been broken by the period between the person's resignation and again being engaged as an APS employee but that period does not count as service as an APS employee for the accrual of leave entitlements or the calculation of redundancy pay.
In addition, however, to the 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.
