Opinion Number. 1518

Subject

public service: disgraceful or improper conduct commonwealth public service: ‘disgraceful or improper conduct’: imprisonment for failure to comply with maintenance order: whether imprisonment disgraceful or improper: whether failure to comply with maintenance order disgraceful or improper

Key Legislation

Commonwealth Public service act 1922 s 55(1): COMMONWEALTH PUBLIC SERVICE ACT 1902 s 46

Date
Client
The Secretary, Public Service Board

The Secretary, Public Service Board has forwarded the following memorandum for advice:

  • I am directed to forward herewith files of papers received from the Secretary, Postmaster-General’s Department, relating to the imprisonment of A.B.C, Telegraphist, Western Australia, for failure to comply with a maintenance order made in the Court of Petty Sessions at Orbost, Victoria, on 9th July, 1929, in favour of the wife and children of the officer named.
  1. Upon his release from prison Mr. C. was permitted to resume duty in the Postmaster-General’s Department, and the Deputy Director, Posts and Telegraphs, Perth, seeks advice as to whether on any ground connected with the case a charge of disgraceful or improper conduct could be preferred against Mr. C. under section 55(3) of the Commonwealth Public Service Act 1922–1931.
  2. The only legal opinion in the Board’s records on the question whether failure to satisfy a judgment for debt or imprisonment for debt may form the basis of a charge against an officer are those of the Crown Solicitor of 29.9.05 (copy attached) and 20.3.08 (set out in the Deputy Director’s memorandum of 27.6.32). These opinions were given as interpretations of section 46 of the Commonwealth Public Service Act 1902–1918 which has been repealed. In section 55(1) of the Act of 1922–1931 the offence of disgraceful or improper conduct is defined as an offence which may be committed either in an officer’s official capacity or otherwise.
  3. The Board would be glad of advice on the question whether a charge could be preferred against Mr. C. under section 55 of the Act of 1922–1931.

Section 46 of the Commonwealth Public Service Act 1902–1918, so far as material, reads as follows:

(1) If an officer … is guilty … of any disgraceful or improper conduct; then such officer shall be guilty of an offence …

Section 55 of the Commonwealth Public Service Act 1922–1931 has replaced section 46, and the first sub-section thereof, so far as material, provides that an officer who is guilty of any disgraceful or improper conduct, either in his official capacity or otherwise shall be guilty of an offence.

In my opinion, failure to comply with a maintenance order and imprisonment in respect thereof cannot be said to constitute ‘disgraceful’ conduct within the meaning of section 55 of the Commonwealth Public Service Act 1922–1931. Such failure may, however, in some circumstances be ‘improper’ within the meaning of that section as, for example, in the case of an officer in receipt of a high salary who wilfully and without just cause refuses to comply with an order made for maintenance. In the present case, Mr. C., although not on a high salary, appears to have been in receipt of such amount as would in ordinary circumstances have been sufficiently large to enable him to make some regular contribution towards his family’s support. The file discloses that the payments were made irregularly. If the cause of the irregularity was the unwillingness of Mr. C. to make the necessary payments and not his financial inability to do so, then I think that it can be said that he was guilty of improper conduct in that he failed, without lawful excuse, to comply with the requirements of a maintenance order made in favour of his wife and family. It may be that Mr. C.’s financial circumstances prior to the making of the order were such as to preclude him from making regular payments. If charged with an offence under section 55, the onus would be on Mr. C. to adduce evidence of his financial circumstances prior to the date of the order and to show that any action on his part subsequent thereto was not done for the purpose of defeating such order.

In cases similar to the present, I do not think that the fact of imprisonment is the basis of the improper conduct. The improper conduct arises from the wilful refusal to comply with a lawful order of a Court to make certain payments. If the refusal results from circumstances over which the officer against whom the order was made has no control, such officer is not, in my opinion, guilty of ‘improper conduct’ within the meaning of section 55(1) of the Act.

[Vol. 25, p. 770]