This circular confirms the requirements where NSW public sector employees intend to stand as candidates for election at the Federal level. Public sector employees are expected to be aware of and comply with ethical obligations that arise as well as legislative provisions affecting their employment if they intend to stand.

Code of Conduct
The Model Code of Conduct for NSW Public Sector Employees (issued May 1997) and the Code of Conduct and Ethics for Public Sector Executives (issued December 1997) at section 10 make reference to political participation.  In particular the Model Code of Conduct states:

'Employees must make sure that any participation in party political activities does not conflict with their primary duty as a public employee to serve the government of the day in a politically neutral manner.'

Public sector employees are not permitted to engage in activities of a party political nature whilst on duty.   Any candidate or person intending to stand should also ensure that when making any political comment whilst not on duty, that they are not identified in any way as acting or speaking in their capacity as a public sector employee.

Public sector employees should also consider specific provisions of their agencies Codes of Conduct that affect their employment.

Public sector employees must ensure that they do not breach any of the above obligations.

Contesting Federal elections - Commonwealth Constitution
Any person wishing to stand as a candidate for election to the Federal Parliament must satisfy themselves as to their eligibility to do so. 

Attention is specifically drawn to section 44(iv) of the Commonwealth Constitution Act 1900, which provides that a person cannot hold an office of profit under the Crown and be capable of being chosen or sitting as either a senator or a member of the House of Representatives.

This provision means that a public sector employee cannot remain employed in the public sector and be elected to Federal Parliament.  The Courts have also interpreted the provision to mean that a public sector employee cannot remain in the public sector, for example on leave, while they are contesting the election.

That is, a public sector employee must resign before they nominate as a candidate. 

Employees who are in doubt about this, or about other eligibility requirements for contesting a Federal election, should seek their own legal advice.
 
Contesting Federal elections - NSW Legislation for Public Sector Employees
Section 103 of the Public Sector Employment and Management Act 2002 provides for the re-appointment of public sector employees including employees of State Owned Corporations who have resigned to contest Federal elections.

The provisions apply where a public sector employee:

• resigns in writing with effect no more than 3 months before the date appointed for election and includes  notice that they intend to become a candidate for election; and
• does becomes a candidate, but fails to be elected; and
• seeks in writing to be re-appointment within 2 months of the declaration of the election results.

Re-appointment is to the employee's former position. If a public sector employee is re-appointed, the person is taken to have been on leave without pay during the period between the resignation and re-appointment and to have never resigned from employment.

Should you have any inquiries please contact Tony Nicod on 9228 3592.

(signed)

A S Smith
Acting Director General