Standing for elected office
Generally, an Australian Public Service (APS) employee may not stand for election to a Commonwealth or State House of Parliament or the Legislative Assembly of the ACT or Northern Territory while still an APS employee.
While the Public Service Act 1999 (PS Act) does not require APS employees to resign to contest an election, the applicable electoral legislation may require a candidate to resign from the APS to be eligible to run. APS employees who are considering contesting an election should seek independent legal advice on their eligibility to contest while still employed in the APS. They should ensure they inform themselves of their agency’s re-engagement process in event of not being elected.
Re-engagement of election candidates
Section 32 of the PS Act provides a right of return to a person who resigns from APS employment in order to contest a specified election. Section 37 of the Australian Public Service Commissioner's Directions 2022 (the Directions) sets out conditions of re-engagement and return, the elections that are specified and applicable time limits. APS employees considering resigning to contest an election should inform themselves of these conditions. A person who has resigned in order to contest a specified election and who has been unsuccessful in that election may be re-engaged as an ongoing APS employee, where the requirements of section 37 the Directions are met.
An unsuccessful election 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 engaged again before the employment would have ended.
A former APS employee who resigned with the intention of contesting a specified election, but subsequently did not stand in that election, would not be eligible for engagement under these arrangements.
In accordance with section 37(2) of the Directions, where an unsuccessful election candidate seeks to be re-engaged as an APS employee, the following time limits apply:
- 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- the petition is withdrawn or lapses.
Agency of return
Section 37 of the Directions prescribes that re-engagement of an unsuccessful election candidate may occur in the agency in which the person was last employed. However, 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.
Treatment of service on re-engagement
Where a person is re-engaged under section 32 of the Act, continuity of service is taken to have not been broken by the period between their resignation and their re-engagement for the purposes of calculating leave entitlements or redundancy pay.
The period between resignation and re-engagement does not count as service for the purposes of the National Employment Standards, or any employment arrangement that applies to the employee. This period does not accrue any entitlements.
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.
Obligations under the APS Code of Conduct
Under the APS Code of Conduct, APS employees have an obligation to take reasonable steps to avoid any real or apparent conflict of interest in connection with employment. APS employees are also required to uphold the APS Values and Employment Principles and the good reputation of their agency and the APS at all times.
Employees have the right to be politically active; however, this right needs to be balanced with the obligations of APS employment. The APS Values and Code of Conduct in Practice , includes guidance on political activity and standing for election in Section 6, and conflicts of interest in Section 5.
The Social media: Guidance for Australian Public Service Employees and Agencies provides a framework for balancing APS employees’ rights as citizens with the obligations of public service employment.
For more information on the APS Values and Code of Conduct, conflict of interest, or the APSC’s social media guidance, contact the Ethics Advisory Service.
HR practitioners seeking more information on standing for an elected office can contact the Employment Policy team via email@example.com or call (02) 6202 3857.