PUBLIC SERVANT EXTENT TO WHICH MISCONDUCT OUTSIDE OFFICIAL DUTY AMOUNTS TO DISGRACEFUL OR IMPROPER CONDUCT
COMMONWEALTH PUBLIC SERVICE ACT 1902, s. 46
The Secretary to the Public Service Commissioner has forwarded me the following memorandum for advice:
A.B.C, Assistant, Postmaster-General's Department, Western Australia, was charged under section 46 of the Commonwealth Public Service Act 1902-1918 with improper conduct in that he committed an act affecting the reputation of the Commonwealth Public Service in that he, a public servant, did obtain property on loan from a certain person and used it as a pledge for his own benefit.
The accused officer admitted the truth of the charge and the Chief Officer has recommended his dismissal from the Public Service.
When forwarding his recommendation for dismissal the Chief Officer stated that C, as a public servant, is identified with an illegal act and he (the Chief Officer) considers that the reputation of the Public Service is affected.
The illegal act referred to came to the knowledge of the Department in a report made by a departmental inquiry officer who elicited that C. had obtained from a person the loan of a cornet which had not been returned, and who obtained from C. a written statement to the effect that he had pawned the cornet. During the course of his inquiries several persons not employed in the Public Service were interviewed by the inquiry officer.
No criminal proceedings have been taken against C. by the owner of the property nor has any reference to the matter been published in the newspapers.
The Acting Commissioner would be glad to be advised whether the conduct of C is improper conduct within the meaning of section 46 of the Public Service Act, and whether he can be dismissed from the Public Service because of his admission of the charge preferred against him.
Reference is invited to the following extract from instructions drafted by the Crown Solicitor and issued to Chief Officers in connection with proceedings under the section named:
While these words ('disgraceful or improper conduct') are apparently wide enough in themselves to include disgraceful or improper conduct of any kind whatever, it should be observed that they are found in a statute which has been passed to regulate the conduct of public servants as officers of the Commonwealth, and not in a statute regulating the conduct of officers in their capacity as ordinary members of the community.
The disgraceful or improper conduct, therefore, which is contemplated by the Act is conduct which is directly or indirectly connected with or has a bearing or effect upon the officer as an officer, or with the performance of his official duties, or which is such as would by causing a public scandal affect the reputation of the Public Service.
Reference is also invited to the several legal opinions which have been given on specific cases such as those of Attorney-General Symon of 12.10.04(1), Crown Solicitor of 4.9.07 and Attorney-General Glynn [of 13.8.09] on same case(2), and Crown Solicitor of 7.12.09 and 29.6.16.
As the officer concerned is still under suspension I am to ask that an early advising be furnished.
Disgraceful or improper conduct need not necessarily be conduct in, or during the discharge of, official duty. If the conduct in question is not in, or during the discharge of, the officer's duty, it is not covered by the expression appearing in section 46 (1) unless it is of so notorious a character as to affect the efficiency of the officer, or through him, the reputation of the Public Service.
In my opinion the facts as shown in the above memorandum do not disclose disgraceful or improper conduct within the meaning of the section.
The fact that C. has admitted the truth of the charge does not warrant the assumption that his acts are such as to constitute the offence referred to, or justify his dismissal under sub-section (5) of section 46.
[Vol.17, p. 467]
(1)Opinion No. 197.
(2)Opinion No. 345.