Opinion Number. 383

Subject

PUBLIC SERVANT WHETHER MAY PARTICIPATE IN STATE POLITICS

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902-1909

Date
Client
The Minister for Home Affairs

The Minister for Home Affairs has submitted the following memorandum by the Public Service Commissioner to me for advice:

A communication has been received from a elegraphist in Sydney inquiring, in view of the approach of the State elections, as to how far, if at all, officers are permitted to identify themselves with party politics.

The matter is not referred to specifically in the Public Service Act, but the code of Regulations as originally promulgated on 1 January 1903 contained a provision, Regulation 41, as follows:

'Officers not to Take Part in Politics.

41. Officers are expressly forbidden to publicly discuss or in any way promote political movements. They are further forbidden to use for political purposes information gained by them in the course of duty.'

It may be stated that in 1904 the Government of Victoria communicated with the Commonwealth Government and requested that Commonwealth Public Servants might be prevented from taking an active part in State politics. The matter was submitted for legal advice, and Mr Attorney-General Higgins gave it as his opinion(1) that the prohibition contained in Regulation 41 (as then existing) applied to State politics as well as Federal politics.

In 1909, Regulation 41 in the above form was repealed, and the Regulation at present existing substituted:

'Officers not to Publicly Comment on Administration &c. 41. An officer shall not-

  1. publicly comment upon the administration of any Department of the Commonwealth; or
  2. use for any purpose other than for the discharge of his official duties, information gained by or conveyed to him through his connection with the Public Service.'

The amended Regulation, it will be seen, omits all reference to politics and merely debars officers from publicly commenting upon the administration of any Commonwealth Department, and using for any purpose other than official the information gained in the performance of his duties.

The question was raised whether Public Servants are debarred from being candidates for Parliament, and on 7 April 1909(2) Mr Attorney-General Hughes expressed the opinion that there is no legal obstacle to a Public Servant conducting a candidature (in his own time) at the stage prior to nomination, but that he cannot be nominated until he has ceased to be a Public Servant-that is to say, until his resignation has been accepted by the Governor-General in Council.

From the absence of any specific inhibition as to State politics in the Regulations and from the fact that any officer may actively conduct in his own time a candidature for Parliament up to the date of nomination, there would appear to be no bar to an officer actively engaging in State politics, but as the matter is one largely of governmental policy, I desire to submit the matter for favour of consideration and directions.

There is nothing in the Commonwealth Public Service Act or the Regulations to directly prevent an officer, who is a citizen of a State, from exercising as such citizen his political rights under the laws of that State.

An officer can therefore, so far as the Commonwealth is concerned, take any part that is open to him under State law in connection with State politics, provided he does so in his own time, and continues to comply with the Public Service Act and Regulations.

[Vol. 8, p. 13]

(1) Opinion No. 183.

(2) Opinion No. 332.