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public service commission .pdf



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Job security questioned for public servants
who stand in elections
by Harley Dennett

Photo courtesy of US Department of Education

Queensland and Tasmanian public servants don’t have the same right to reappointment if they
resign to stand for election. The Mandarin examines the running field. 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 or public service commission 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
Federal

ACT

NSW

NT

Qld

SA

Tas

Vic

WA

RESIGN BEFORE
NOMS CLOSE

RE-APPLY
AFTER RESULTS

CONTINUOUS DISCRETIONARY

Less than 6
months

Less than two
months

Yes

No

Less than 6
months

Less than
two months

Yes

No

No defined
period

Less than
two months

Yes

No (federal only)

Less than one
month

Less than
two months

Yes

No

No defined
period

Less than three
months

Yes

Yes

Less than one
month

Less than
two months

Yes

No

Less than one
month

Less than
two months

Yes

Yes

No defined
period

Less than
two months

Yes

No (federal only)

Less than two
months

Less than
two months

Yes

No

Source:
http://www.themandarin.com.au


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