On 31 May 1909, A.B.C., an officer of the Department of Trade and Customs, was charged with being guilty of improper and disgraceful conduct within the meaning of section 46 of the Commonwealth Public Service Act 1902.

The words of the section are 'any disgraceful or improper conduct'.

The Board of Inquiry found four of the ten charges proved, and that C.'s conduct in connection therewith was both improper and disgraceful and created a public scandal; but that such conduct was not connected with, and had not affected the efficient discharge of, his official duties.

My opinion is asked as to whether on the facts found by the Board the officer was guilty of the offence of disgraceful or improper conduct within the meaning of section 46 of the Act.

None of the charges established were in respect of conduct since September 1906, or appear to have been made under the Act the basis of inquiry, or an attempt to dismiss the officer until complaints were made in respect of alleged conduct in August 1908. Though delay in prosecution is not a defence, it may be evidence, though not of much force, of departmental opinion as to the character of the conduct and its relation to an officer's efficiency.

While of opinion that disgraceful and improper conduct within the meaning of section 46 (1) of the Act is not confined to conduct in, or during, the discharge of official duty, I think conduct not in, or during, the discharge of such duty must be such, and in itself so notorious, as to affect the efficiency of the officer, or through him the reputation of the Public Service. The scandal, I think, must directly result from the conduct, not merely from the publication of judicial proceedings in which the conduct, otherwise private, incidentally formed part of the evidence. Unless proceedings and publication must inevitably ensue upon the conduct, I do not think that immorality, not so notorious as to scandalize the public and thus affect the repute of the Service, is necessarily disgraceful or improper conduct within the meaning of the section.

On the whole, it does not seem to me to be a case in which an attempt should be made to test the meaning of these words in the context, admittedly doubtful, by dismissing the officer or compelling him to resign.

[Vol. 7, p. 196]