Opinion Number. 232



Key Legislation


The Secretary, Department of Home Affairs

The Secretary, Department of Home Affairs asks to be advised on the question stated in the following memo:

The accompanying papers are forwarded for favour of advice as to the Departmental procedure which should be followed. It would appear that Mr A. sequestrated his estate for the benefit of his creditors on 20 February 1901, when his sworn liabilities amounted to £.522.11.5 and his assets were 10s No application for a certificate has been made.

Mr A. was appointed to the Permanent Staff of this Department on 31 December 1902 (prior to the operation of the Commonwealth Public Service Act). He did not report that he was an uncertificated insolvent, nor was that fact known to me until within the last few days.

B.C. has, I understand, proceeded against Mr A. for the recovery of the debt referred to in her communications herewith. I also understand that judgment has been entered for the amount claimed.

Not having a precedent to guide me as to whether the fact of Mr A's insolvency having been unknown to me in 1902 affects his position in the Service or not, I will be glad to have your advice on the matter.

With reference to B.C. 's complaint that Mr A. obtained money from her with security which she states subsequently proved to be of no value, I fail to see that a Public Department may even inquire into a matter over which it has no jurisdiction. Of course should an officer be guilty of fraud or dishonourable conduct he must be proceeded against under the Public Service Act but I am in doubt as to whether a Public Department has the power to inquire into a charge of such a serious nature and possibly arrive at a decision until after the case has been disposed of before a Court of Justice. I will therefore be much obliged to you for advice on this subject as to how far this Department is warranted in taking action and, if so, the nature of such action.

Attention is also invited to B.C.'s statement that Mr A. has since the date of his insolvency incurred liabilities to the extent of £550; is the Department warranted in inquiring into this and, if so, what would be the charge?

The question practically is whether any charge can be laid under section 46 of the Commonwealth Public Service Act-and that narrows itself down as to whether a charge of 'disgraceful or improper conduct' can be laid.

I do not think that any facts are disclosed which would warrant such a charge being laid.

'Disgraceful or improper conduct' in section 46-though it is not confined to misconduct in the discharge of official duties, does not in my opinion apply to other misconduct unless it is a matter of public notoriety or scandal in such degree or to such an extent as to affect the status or reputation of the officer as a public servant. See opinion of Attorney-General Sir Josiah Symon dated 12 October 1904(1), given to the Public Service Commissioner.

It is obviously impracticable for charges of fraud or dishonourable conduct brought against an officer, and having no relation to his public duties or position, to be investigated officially.

[Vol. 5, p. 158]

(1) Opinion No.197.