Election candidates - resigning from the APS
Generally, an Australian Public Service (APS) employee cannot also seek to be elected to a Commonwealth or State House of Parliament or the Legislative Assembly of the ACT or Northern Territory.
APS employees who are considering being a candidate in such an election may be required to resign from the APS. APS employees should seek their own legal advice on the relevant electoral acts and other legislation.
APS employees who are Torres Strait Islander and Aboriginal people living in the Torres Strait region can stand for election to the Torres Strait Regional Authority (TSRA). However, under section 142V of the Aboriginal and Torres Strait Islander Act 2005, employees of TSRA must resign if they wish to nominate for election. Employees seeking more information should contact the Department of the Prime Minister and Cabinet.
Unsuccessful election candidates - returning to the APS
A person who has resigned in order to be a candidate in a specified election and who has been unsuccessful in that election may be entitled to return to the APS agency in which they were last employed, without having to go through a recruitment process.
Section 32 of the Public Service Act 1999 (the Act) provides a right of return to a person who resigns from APS employment in order to contest a specified election.
Section 32 of the Public Service Commissioner's Directions 2016 sets out conditions for this return, including the elections that are specified and time limits that apply.
Returning to the APS
A person is entitled to return to the APS agency where they were last employed and be engaged as an employee if:
- the person resigned in order to contest a specified election;
- the resignation took effect not earlier than six months before the closing date for nominations for the election; and
- the person was a candidate at the election but failed to be elected.
- An employee who resigned with the intention of contesting an election but who did not subsequently so do would not be eligible for engagement under these arrangements.
- This includes where a person is not pre-selected by a political party as a candidate.
The following are specified 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; and
- an election for a member of the Torres Strait Regional Authority, established under the Aboriginal and Torres Strait Islander Act 2005.
The unsuccessful election candidate must apply to the agency in which they were last employed within the following time limits:
- where the result of the election is not disputed, two months after the declaration of the result of the election; and
- where the result of the election is disputed, two months after:
- a court of disputed returns decides the petition disputing the result; or
- the petition is withdrawn or lapses.
In certain circumstances, the Australian Public Service Commissioner may declare that an unsuccessful candidate was an employee of another, specified agency. This situation may arise, for example, where the agency in which the person was last employed no longer exists, or the person's duties have been moved to another agency.
In these circumstances, the person must apply to the relevant agency as soon as practicable after receiving notice of the declaration.
Conditions of employment
Where an unsuccessful election candidate is entitled to return as an APS employee, the person must be:
- engaged on the same basis (ongoing or non-ongoing) as prior to resigning;
- engaged at the same classification as prior to resigning;
- assigned duties that are the same as, or similar to, the duties of the person immediately prior to resigning, or if such duties are unavailable, other duties at the same classification;
- engaged on:
- the same terms and conditions of employment that applied 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 service of the person is taken not to have been broken by the period between their resignation and their engagement as an APS employee for the purposes of calculating leave entitlements or redundancy pay as set out under the relevant enterprise agreement or other industrial instrument.
However, the period between resignation and engagement does not count as service for the purposes of the National Employment Standards, or any employment arrangement that applies to the employee.
For entitlements to long service leave and paid maternity leave, see the Long Service Leave (Commonwealth Employees) Act 1976 and the Maternity Leave (Commonwealth Employees) Act 1973.
An unsuccessful candidate who had been previously employed on a non-ongoing or temporary basis is generally only entitled to return if:
- the employment would not have otherwise ended if the person had not resigned to contest an election; and
- the person applies to the agency head to be again engaged before the employment would have ended (had the person not resigned).
For more information, contact staffingpolicy [at] apsc.gov.au
Further information on APS employees engaging in political activities is also included in section 6 of the Australian Public Service Commission's publication APS Values and Code of Conduct in practice.