WRITTEN BY John Wilson & Kieran Pender
A federal election is nearly upon us, and with it, heightened concerns about the extent to which public servants are permitted to participate in the political life of this country.
This is no novel topic – it is something we have canvassed repeatedly in these pages – but given the poll is, at most, two months away, it warrants renewed consideration.
The challenge in reconciling the fact that public servants are citizens entitled to political participation, and the importance of public sector impartiality, has vexed liberal democracies around the world for over a century. From early colonial times, public servants were effectively barred from political affairs – reflecting a British-inherited “obligation of silence”, in the words of one scholar.
Victoria saw an early attempt to engage with the democratic deficit caused by excluding a significant portion of the population from political life. In 1903, the Victorian parliament passed laws preventing public servants, policemen and railway workers from voting in general elections – instead creating special electorates in which public servants could seek election by their peers. The novel approach lasted just one term – with even the separately-elected politicians advocating for the regime’s repeal.
Ever since, Australian governments – federal and state – have grappled with allowing public servants to engage politically without wanting that engagement to detract from public sector neutrality. Given there are 2.5 million public servants in the workforce – across federal, state and local government – that is a lot of grappling to be done (almost one in 10 Australians, of 17% of the workforce, is a public servant).
The starting point is the Constitution. Section 44 prevents anyone who “holds any office of profit under the Crown” from sitting in Parliament. Accordingly, public servants are required to resign before contesting an election. However, section 32 of the Public Service Act 1999 (Cth) provides for a “right of return” for public servants who resign and are then unsuccessful – they are entitled to return at the same level and to the same or similar duties.
Next, there is the Code of Conduct in the Public Service Act. This requires federal public servants to behave “at all times” in a way that upholds the APS Values; one of these values is “impartial: the APS is apolitical”. This provides a curb on public sector political activity. Where that limit falls exactly will be very context-specific.
The Australian Public Service Commission (APSC) guidance, APS Values and Code of Conduct in Practice, assures that “APS employees may participate in political activities as part of normal community affairs. They may also join, or hold office in, political parties.” Ordinarily, there is nothing preventing a public servant door-knocking, handing out how to vote cards or volunteering behind the scenes – provided that is done in a personal capacity with no suggestion of any link with the APS. The guidance adds: “They should not wear anything that identifies them as an APS employee at party political meetings.”
Further, there is an obligation under the Code of Conduct to take reasonable steps to avoid any real or apparent conflict of interest in connection with APS employment. Accordingly, public servants wishing to take part in political campaigns should be cautious about potential conflicts. The more active or public-facing any involvement in a political campaign is, and the greater the nexus with a public servant’s area of work, the higher the risk.
In such circumstances, a prudent public servant may raise the issue with their supervisor. As the APSC cautions, in the case of any significant role in a campaign, “the employee should discuss such potential conflicts with their agency. Ways of resolving such conflicts might include the employee taking leave, rearranging existing duties, transferring to other duties, or agreeing to take a less significant role in the political campaign.”
The question of political campaigning blends into the equally challenging question of political commentary by public servants. The rise of social media has made that a particular acute challenge, with high-profile cases over the past decade– such as Michaela Banerji, sacked by the Department of Immigration for her tweets and ultimately losing in the High Court in 2019 – casting a chilling effect across the public service.
The APSC guidance post-Banerji is more measured than it once was. Although directed at political commentary, it offers a useful yardstick for any form of political activity by public servants. The guidance outlines three risk factors to consider: seniority, connection between the topic and a public servant’s work, and the tone and context.
The more senior a public servant, the greater the limitations on what they can say or do in a personal capacity. A departmental secretary could not participate in an election campaign in almost any way (other than by voting); an APS graduate will have much more latitude, whether it be political tweets or putting up corflutes.
Second, the risk to impartiality is heightened when there is some nexus between a public servant’s day to day work and their private activity. An Attorney-General’s Department executive writing an independent Senate candidate’s policy platform on integrity issues would raise major conflict of interest concerns; a junior APS officer at Treasury assisting, as a volunteer, in a candidate’s environmental policy would be less problematic.
Last, factors of tone, language and context are relevant. As the APSC explains, “an employee’s extreme criticism or praise of a political party or a policy may lead a reasonable member of the community to believe the employee is so entrenched in their position that they can’t put aside their personal views to behave professionally and impartially at work.”
Subject to these lawful restrictions, public servants are not – to quote a Federal Court case – “silent members of society.” Prudence may be advisable, but public servants wanting to be politically active in the forthcoming election should do so (within the relevant limits).
Other than that brief Victorian experiment, we have not “created, and manifestly would not want to create, a separate caste of public officials,” judge and scholar Paul Finn once wrote, “we have not relegated our officials to the status of second class citizens.” It follows that, within some limits, we must accept and “indeed promote” public servants’ political participation. On the eve of another federal election, these words remain salient.
If you have any questions or queries about the information in this summary, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.
First Published 3 March 2025 in The Canberra Times ‘Can public servants participate in the election? Yes, but there are some pitfalls‘ –