The Secretary to the Public Service Commissioner has forwarded me the following memorandum for advice:

The second and third paragraphs of section 49 of the Commonwealth Public Service Act read as follows:

In any case where such Board finds that the charge is not proved, the Board may recommend that the reasonable expenses or any part thereof incurred by such officer in meeting such charge be paid, the amount of such expenses to be mentioned in such recommendation.

Every such recommendation shall be considered by the Governor-General. On 2.7.14 the Crown Solicitor gave an opinion, in a case in which three separate charges were preferred against an officer two of which were found by a Board of Inquiry to be proved, and one not proved, that the Board had jurisdiction under section 49 to recommend payment of the expenses incurred by the officer charged in meeting the charge found to be not proved, notwithstanding that the other charges tried at the same time were held by the Board to be proved.

An instance recently occurred in which an officer was charged in the following terms:

I hereby charge A.B. with the commission of an offence within the meaning of the Commonwealth Public Service Act 1902-1918 namely that the said A.B. was on or about the dates hereunder mentioned guilty of improper conduct in that he-

1. on 2 December 1921 whilst on an official mission to England and the Continent of Europe harboured concealed and imported into England from Calais two pairs of binoculars a pair of opera glasses and a wristlet watch with intent to defraud His Majesty's Customs of duties payable thereon;
2. failed to comply with an instruction given to him by the Secretary, Postmaster-General's Department, by direction of the Postmaster-General and contained in a cablegram dispatched to him on 29 October 1921 and reading as follows:

As high frequency apparatus can be used elsewhere if not eventually required Sydney Melbourne Minister directs order to stand . . . ;

1. made misleading reports to the Secretary, Postmaster-General's Department, concerning a proposed reduction or abolition of the training of junior mechanics in training in manual and switchboard operating to wit reports dated respectively 2 June 1922, 9 June 1922, 14 June 1922, 22 June 1922 and 24 June 1922;
2. failed until he was specifically directed so to do to take action to have brought before the Tender Board for consideration two cablegrams containing information regarding tenders received in England for bronze wire etc., which cablegrams were received in his branch on 21 June 1922 and 26 June 1922 respectively; or (alternatively) supported the conduct of the officer or officers who failed to take the said action;
3. in March 1921 without authority made or authorised to be made an arrangement with the Automatic Telephones (Australia) Limited for the substitution of rotary line switches for Keith switches in connection with equipment to be supplied by the said Company to the Postmaster-General's Department;
4. made on 4 April 1922, 6 April 1922, 5 April 1922 and 6 July 1922 respectively misleading reports to the Secretary, Postmaster-General's Department, regarding the arrangement referred to in clause (e) of this charge;
5. made misleading statements in reports to the Secretary, Postmaster-General's Department on the subjects and dates hereunder set forth namely-
   1. statement headed 'Action of Secretary in restricting my movements' in report dated 10 July 1922, and
   2. report dated 15 July 1922 regarding the telegraph line between Adelaide and Darwin;
6. made in official minutes and cablegrams addressed to the Postmaster-General and to the Secretary, Postmaster-General's Department (particulars of which minutes and cablegrams are set forth hereunder) statements of a character and tone calculated to impair the efficient and harmonious conduct of business of the Department and cause delay in the transaction of such business:
   1. cablegrams dated 19 September 1921 and 26 September 1921 respectively and minutes dated 5 May 1922 and 8 May 1922 respectively regarding British Post Office carrier system;
   2. minute dated 7 July 1922 regarding tenders for bronze wire received in England;
   3. minutes dated 13 May 1922 and 24 May 1922 respectively regarding multiplex apparatus for Sydney-Melbourne trunk line;
   4. minute dated 9 June 1922 regarding inspection and ordering of stores and material.

The finding of the Board of Inquiry was as under:

Having heard the evidence, and having considered the evidence and the documents produced in evidence, we find the charge proved in respect of the matters referred to in paragraphs (a), (b), (c) and (h) thereof, but not proved in respect of the matters referred to in paragraphs (e), (f) and (g) thereof.

It will be noted that in this case only one charge, viz. of improper conduct, was preferred, and that certain of the instances forming the bases of that charge the Board of Inquiry found to be proved, while other instances were found to be not proved.

The Board of Inquiry made no recommendation as to payment of the expenses of the accused officer in meeting the charge, but the Board may have considered that it was not competent for them to make such a recommendation in the circumstances of the case.

The Acting Commissioner would be glad to be favoured with advice upon the following aspects of the matter:

1. Was it within the powers of the Board of Inquiry under section 49 of the Act to recommend payment of the expenses, or part thereof, incurred by the accused officer in meeting the charge insofar as expense was incurred by the officer in defending himself against the matters forming the bases of the charge which were not proved?
2. If so, is it competent for the Board to make such a recommendation at this stage, seeing that the Board has completed its inquiry and furnished its report?

It was in my opinion competent for the Board in this case to make a recommendation under the second paragraph of section 49 of the Commonwealth Public Service Act 1902-1918.

I see no reason why the Board should not if it thinks fit make a recommendation as to expenses although its inquiry has been completed and report furnished.

[Vol. 19, p. 156]