The following frequently-asked questions outline legislative requirements relating to State Service employees and officers who nominate as candidates at Commonwealth, State or Local Government elections.

This information is also available for download as a PDF (PDF, 146KB).

Federal elections

Are you required to resign to contest an election?

Yes. You have to resign to contest an election for either House of the Commonwealth Parliament prior to nominating.

Under Section 44 of the Commonwealth of Australia Constitution Act you must resign from public employment (“an office of profit under the Crown”) before contesting an election for a seat in the Federal Parliament or risk your election being declared invalid by a Court of Disputed Returns for not completing a valid nomination form (see High Court decision, Sykes v. Cleary and others, 1992).

It is recommended that you refer to Section 170(1)(b) of the Commonwealth Electoral Act forcompleting a valid nomination.

When should you resign to contest a Federal election?

You are entitled to normal leave entitlements (recreation leave, long service leave or leave without pay) for campaigning up until you resign.

The latest acceptable date to resign is the date formal nominations with the Australian Electoral Commission close. Resignation is to be no later than the hour before nominations close or before 12 noon on the nomination closing day*.

It may be prudent to ensure resignation takes effect before nominating as a candidate. This responsibility is one for the employee or officer not the employer.

If you resign to contest an election, can you be reappointed if you are an unsuccessful candidate?

Yes. Provided you resigned not more than one month before nominations for that election closed, you can apply within 2 months of the declaration of the result of that election, to be reappointed to the position from which you resigned.

Heads of Agency are not obligated but have discretionary power to reappoint under Section 3(1) of the Crown Servants’ Reinstatement Act 1970.

If you are reappointed you can electto count your absence during the election (the period from the day on which your resignation took effect to the day before the day on which you are reappointed) as either leave without pay under Section 3(2) Crown Servants’ Reinstatement Act 1970, or, if you become entitled by reason of your resignation to become a candidate, to an allowance under Section 20 of the Long Service Leave (State Employees) Act 1994 and an allowance was paid under that Act, as long service leave under Section 3(3) Crown Servants’ Reinstatement Act 1970.

Provided you apply for reappointment within 2 months of the declaration of the result of that election the break between resignation and reappointment does not break your continuity of service, for the purposes of calculation under the Long Service Leave (State Employees Act 1994.

State Elections

Are you required to resign to contest an election as a State Service Employee?

No. If you are a State Service employee who wishes to become a candidate for election to either house of State Parliament, you do not have to resign prior to contesting a seat.

Note for fixed term employees:  your employment contract expiry date, whether expressed or implied is not extended due to any period of absence.

What provisions are available to employees for campaign leave?

You are entitled to leave without pay for up to two months for the purpose of contesting a State election. This entitlement is covered under the provisions of Section 2(2)(b) of the Constitution (State Employees) Act 1944.

You can also request in the normal way any other leave entitlements if you wish to take additional leave, subject to Head of Agency approval.

What if you are not elected?

You can either complete the scheduled period of leave without pay or make a request to the Head of Agency to return to work at an earlier date. A decision to allow you to return early is at the discretion of the Head of Agency.

Your entitlements on return to State Service employment following a period of leave without pay in excess of 20 working days in a year have exclusion limits (in relation to

calculating length of service, leave entitlements and salary progression).

Section 11(3)(d) of the Long Service Leave (State Employees) Act 1944 and Regulations 24(3) and 24(4) of the State Service Regulations 2001 specify the conditions for your return.

What if you are elected?

If elected, the Constitution (State Employees) Act 1944 provides that service as a State employee is automatically terminated.

Are you required to resign to contest an election as a State Service Officer?

Yes.  If you hold an office created under Section 29 of the State Service Act 2000 (i.e. Head of Agency, Senior Executive Officer, or Equivalent Specialist Office) and become a candidate at an election for members of either House of State Parliament you are required to vacate the office on becoming a candidate (State Service Act (Section 31(5)) – i.e. when nominations have closed, and you are formally recognised as a candidate.

Section 38(4) of the State Service Act 2000 makes provision for a person appointed as an officer who was immediately prior to being an officer a permanent employee in the State Service and whose appointment is terminated or not renewed to elect within 14 days after the termination or expiration to be reappointed as a permanent employee.

By vacating your role as an officer you can exercise the right to reappointment as a permanent employee.  As a permanent employee you can access leave without pay for the purpose of contesting an election, thereby avoiding the requirement to resign from the State Service. In this instance, the procedures outlined for employees are to be followed.

There is no legislation providing for the reappointment of an officer after his/her resignation to contest an election.

Local Government Elections

There are no legislative requirements relating to employment for State Service employees and officers wishing to nominate as candidates in local government elections.

Candidates in local government elections are entitled to leave in accordance with the State Service Act 2000 and applicable Public Sector Awards.

Are you required to resign if you are a successful candidate?

No, however if elected you must be mindful of avoiding any potential conflict of interest and ensuring you comply with the State Service Principles and Code of Conduct, contained in the State Service Act 2000 (Section 7(1) and Section 9 respectively, at all times.

Legislation and Related Documents 

Commonwealth Legislation:
Commonwealth of Australia Constitution Act 1900

Commonwealth Electoral Act 1918

Tasmanian Legislation and related documents:

Constitution (State Employees) Act 1944

Crown Servants' Reinstatement Act 1970

Long Service Leave (State Employees) Act 1944

State Service Act 2000

State Service Regulations 2001

Applicable Public Sector Awards

Intending candidate resources

The sites listed below contain key resources for candidates including the ‘election timetable’ relating to Issue and Return of Writs, ‘Information for Candidates Handbook’ to calculate key dates for nomination and extracts from relevant legislation relating to employment for Holders’ of an office of profit under the Crown, State Public Servants and Government Contractors.

Employees and Officers are advised that this document is designed to be used only as a guide and it is recommended that you obtain your own independent legal advice if in any doubt about whether the provisions of the legislative basis and related documents apply to you.

Tasmanian Electoral Commission website (TEC)

Australian Electoral Commission website (AEC)

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