Public servants should read the fine print before resigning to run for state or federal parliament. A failed candidate has a statutory entitlement to resume their public sector position in most states, but there are caveats and continuity is not guaranteed.
The Joint Standing Committee on Electoral Matters was surprised to hear earlier this month that the rules permitting public sector employees to return to their positions following an unsuccessful bid for election are not consistent across all states and territories.
The Australian Electoral Commission warns candidates about the constitutional prohibition of Crown employees running for office in its candidate handbook — and that the consequences can be severe:
“In its November 1992 decision in the case of Sykes v. Cleary, the High Court voided the election of Mr Phil Cleary as member of the House of Representatives for the Division of Wills. Mr Cleary was disqualified from being chosen as a member under section 44(iv) of the Constitution on the grounds that, as a Victorian state school teacher on leave without pay, he held an ‘office of profit’ under the Crown. This case has been approved in subsequent High Court applications.”
Federal public employees have iron-clad protection if they wish to reappoint, as long as they resign within six months prior to the closing of nominations and apply to return within two months of notice of the results.
State employees in the ACT, North Territory, South Australia and Western Australia have their own caveats, but all have a similar automatic right to return.
New South Wales and Victoria have a right to reinstatement for candidates in federal elections only. Public servants are not required to resign to run for the NSW or Victorian parliaments, but if they do resign — as they must if elected — they will have no claim to their former position.
Queensland and Tasmania, however, give the head of agency discretionary power to reappoint an employee who resigned to contest an election. A Queensland Public Service Commission spokesperson told The Mandarin:
“A chief executive officer has the discretionary power to reappoint that person if they apply for reappointment within three months of the writs being returned. When a person is reappointed in a case like this their service is deemed to be continuous, so that they regain entitlements such as their accumulated long service or sick leave.”
Regardless of jurisdiction, public sector employees must not use agency resources in campaigns, no matter whether running for Commonwealth or state office. Those states that allow candidates to not resign when running for state parliament are required to take a leave of absence for the campaign period.
Where re-appointment is guaranteed by statute, unsuccessful candidates can expect to return to their public sector position on the same pay and conditions as before.
A representative for the Greens, Penny Allman-Payne, told the parliamentary committee that public servants representing minor parties were most affected by the discretionary nature of reappointment provisions in Queensland.
“It’s a great comfort for those who are [guaranteed a right to return], but it’s not the case in all states, for instance in Queensland,” she said. “It’s simply by convention and the practice in the particular department and government of the day. Consistency would be great.”
|STATE||RESIGN BEFORE NOMS CLOSE||RE-APPLY AFTER RESULTS||CONTINUOUS||DISCRETIONARY|
|Federal||Less than 6 months||Less than two months||Yes||No|
|ACT||Less than 6 months||Less than two months||Yes||No|
|NSW||No defined period||Less than two months||Yes||No (federal only)|
|NT||Less than one month||Less than two months||Yes||No|
|Qld||No defined period||Less than three months||Yes||Yes|
|SA||Less than one month||Less than two months||Yes||No|
|Tas||Less than one month||Less than two months||Yes||Yes|
|Vic||No defined period||Less than two months||Yes||No (federal only)|
|WA||Less than two months||Less than two months||Yes||No|