COMMONWEALTH PUBLIC SERVICE: PUBLIC SERVANT FOUND BY ROYAL COMMISSION TO HAVE ENGAGED IN MISCONDUCT: WHETHER ACTION AGAINST PUBLIC SERVANT UNDER COMMONWEALTH PUBLIC SERVICE ACT SHOULD BE TAKEN: WHETHER EX GRATIA PAYMENT FOR COSTS INCURRED BY PERSON APPEARING BEFORE ROYAL COMMISSION MAY BE MADE
COMMONWEALTH PUBLIC SERVICE ACT 1922 ss 25, 55: PUBLIC SERVICE REGULATIONS reg 119
I refer to your memorandum (5045) dated 3rd October.
(2) In the report of the Royal Commission the Commissioner said – ‘… Mr. X. … has already suffered considerably as a result of his misconduct … one must agree that such sufferings … were deserved but one should, in my opinion, seriously consider whether Mr. X. has not already suffered sufficiently for his wrongdoing … It is dangerous I know to sum up such matters in a single sentence, but the fact is that Mr. X. was given an important public task in times of emergency and he was not big enough to perform it properly. The realization that his failure has been made known to all must be punishment, severe in itself, to a public servant with his past career’.1
(3) An opinion of a Royal Commissioner, particularly the opinion of one who is a member of the Judiciary, expressed in such unequivocal terms, obviously calls for serious consideration. This is all the more so, if account is taken of the fact that the conclusions at which the Commissioner has arrived have a direct bearing on the interpretations of the facts which would have to be relied upon to support charges under the Commonwealth Public Service Act.
(4) It is to be noted, too, that the Commissioner’s conclusions are based on a very large body of material facts and have been reached after an examination of those facts more exhaustive than a Public Service authority could be expected to make, and that no conclusions inconsistent with the Commissioner’s conclusions would appear to be open if the facts were the subject of an independent enquiry by a Public Service authority. Moreover—and I think this is of no small importance—the Commissioner’s observations are expressive of ordinary judicial good-sense and as such they afford ample justification to the administrative authorities for observing restraint in the enforcement of disciplinary measures. In my view, therefore, the Permanent Head would be fully justified in accepting the opinion of the Commissioner and acting in conformity with it.
(5) If the Permanent Head proposes to recall X from the position of Officer in Charge of the Land Sales Control Branch in Sydney, in which he has been merely acting temporarily, and does not consider it necessary or desirable to fine him, to reduce his permanent salary, to reduce him to a lower division class or position, to transfer him to some other position or locality against his will, or to recommend to the Board his dismissal, then no good purpose is to be served by charging him under the Commonwealth Public Service Act, and, in my opinion, there is no obligation on the Permanent Head to do so. I think that if the Permanent Head considers it proper in the public interest to transfer X to some other position or locality, whether against his will or not, he is empowered to take that action without laying any charge against X (Commonwealth Public Service Act Section 25: Regulation 119).