The Secretary to the Public Service Commissioner has submitted for advice the question whether it is competent for a Chief Officer, who has referred to a Board of Inquiry a charge laid under section 46 of the Commonwealth Public Service Act 1902-1918 and received the Board's finding thereon, to refer the finding back to the Board for reconsideration.

Sub-section (4) of section 46 provides that if the Chief Officer considers an offence to be of so serious a nature as to require investigation by a Board of Inquiry, he may further suspend the officer charged and refer the charge to a Board of Inquiry.

The sub-section further provides that the Board shall not include the person by whom the officer was suspended. Except in emergent cases, suspension is effected by the Chief Officer.

Sub-section (6) of section 46 provides that: 'If none of [the] charges are found by the Board of Inquiry to be proved the suspension shall be immediately removed by the Chief Officer'.

In the case in relation to which advice is asked the Board found the officer not guilty of the two charges preferred against him.

In view of the definite wording of sub-section (6), I am of opinion that where the finding of a Board results in a clear acquittal of the officer, the suspension must be immediately removed, and a Chief Officer is not empowered to refer the finding back to the Board for further consideration.

It may be that in cases where a finding does not amount to a clear acquittal or is ambiguous, a Chief Officer is justified in sending a finding back, not for revision by the Board, but for the purpose of obtaining information to guide the authorities specified in sub-section (5) in the exercise of the powers conferred upon them by that sub-section. But it is not necessary for the purpose of the present case to advise whether such a power exists, and, if so, as to its limits.

All that appears to be called for in the present case is that where, as in this case, there has been a clear acquittal, a Chief Officer has no power to send a finding back to the Board, but must at once comply with the terms of section 46 (6) of the Act.

[Vol. 18, p. 36]