Opinion Number. 197

Subject

PUBLIC SERVANT WHETHER DISGRACEFUL OR IMPROPER CONDUCT IS CONFINED TO MISCONDUCT IN DISCHARGE OF OFFICIAL DUTY : WHETHER ADULTERY IS SUBJECT FOR DISCIPLINARY ACTION

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902, s. 46

Date
Client
The Public Service Commissioner

It appears that a Commonwealth officer in New South Wales has been joined as co-respondent in a divorce suit, and that a charge of adultery has been found against him.

The Public Service Commissioner asks to be advised on the following questions:

  1. Does an act of adultery by an officer constitute 'disgraceful or improper conduct' within the meaning of section 46 of the Commonwealth Public Service Act?
  2. If yes, would it be necessary, in the event of a charge being laid, to prove the adultery de novo or would the mere proof of the finding of a Divorce Court against him as co-respondent be sufficient to substantiate the charge?

In my opinion:

  1. 'Disgraceful or improper conduct' in section 46 of the Commonwealth Public Service Act is not confined to misconduct in the discharge of official duty. Adultery by an officer, if it became matter of public notoriety or scandal, or was the subject of an adverse finding against him by a public tribunal, in such degree or to such an extent at least as to affect his status or reputation as a public servant, would in my opinion be sufficient ground for a charge of disgraceful or improper conduct within the meaning of section 46 of the Act.
  2. The decree of a Divorce Court finding that an officer charged with such improper conduct had been guilty of adultery would be admissible in evidence in support of the charge.
  3. The question whether the finding would be sufficient to substantiate the charge depends upon the contents of the decree.
  4. The decree would not be conclusive against the officer, and he would be entitled to bring forward evidence in proof of his innocence or in mitigation of the charge.

[Vol. 4, p. 369]

* See also Opinion No.232.