Opinion:
No. 1392
Subject:
Public Service
prohibition of performance of work outside commonwealth service: officer practising as licensed bookmaker: whether engaged in or undertaking business: ‘business’: whether engaged in a profession: ‘profession’
Author:
GARRAN Robert Randolph
Key Legislation:
COMMONWEALTH Public Service Act 1922 ss 55(1)(d), 91(1)
Date:
30 July 1926
Client:
The Secretary, Commonwealth Public Service Board
Related Opinion:
Opinion text:

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

  • I am directed to inform you that it has been ascertained that an officer of the Postmaster-General’s Department, New South Wales, is registered as a licensed bookmaker by the Australian Jockey Club and has been carrying on bookmaking at Randwick racecourse for some considerable time on Saturday afternoons and public holidays.
  1. The Chief Officer proposes to charge the officer concerned with the commission of a breach of the provisions of section 91, (sub-section (1)) of the Commonwealth Public Service Act 1922–1924, but the Board is not satisfied that the wording of any of the paragraphs of the section covers the case under notice. Bookmaking may not be a ‘business’ within the meaning of paragraph (b) and (c) of the section or a ‘profession’ or ‘trade’ within the meaning of paragraph (d). As to paragraph (e), if bookmaking can be regarded as ‘employment’ within the meaning of the paragraph it would apparently be necessary, before a charge could be sustained, to prove that the employment was remunerative and, in the event of the Chief Officer imposing a punishment and the officer appealing under section 55(1)(d), the onus of proof that the employment was remunerative would rest with the Chief Officer’s representative before the Appeal Board.
  2. I am to request that you will kindly favour the Board with advice as to the application of section 91 to the case.
  3. The question to be determined is whether an officer of the Postmaster-General’s Department, by acting as a licensed bookmaker, has infringed section 91 of the Commonwealth Public Service Act 1922–1924.

Subsection (1) of section 91 of the Commonwealth Public Service Act 1922–1924 is as follows:

91(1)Except with the express permission of the Board, which permission may at any time be withdrawn, no officer shall–

  1. accept or continue to hold an office in or under the Government of any State, or in or under any public or municipal corporation; or
  2. accept or continue to hold or discharge the duties of, or be employed in a paid office in connection with, any banking, insurance, mining, mercantile, or other commercial business, whether carried on by any corporation, company, firm or individual; or
  3. engage in or undertake any such business, whether as principal or agent; or
  4. engage or continue in the private practice of any profession or trade; or
  5. accept or engage in any remunerative employment other than in connection with the duties of his office or offices under the Commonwealth.

In my opinion, the officer concerned, by acting as a bookmaker in the circumstances referred to in your memorandum, may be considered to have engaged in a ‘business’.

The word ‘business’ has been defined for legal purposes as ‘anything which occupies the time and attention and labour of a man, for the purpose of profit’.

The word ‘business’ is sometimes interpreted legally to include occupations in which pecuniary profit is not contemplated, but, since profit is contemplated in the occupation of bookmaking, I think bookmaking would, apart from the context, come within the scope of the definition of ‘business’ quoted above.

The word ‘commercial’ has received a legal connotation in some cases, which would probably, apart from the context, enable bookmaking to be regarded as a ‘commercial business’.

But the words ‘other commercial business’ in paragraph (b) of subsection (1) of section 91 of the Commonwealth Public Service Act 1922–1924 are preceded by the more specific words ‘banking, insurance, mining, mercantile’, and it is therefore probable that the rule of ejusdem generis would restrict the meaning of the general words ‘other commercial business’ to an interpretation analogous to that to be given to the more specific words.

It may, therefore, not be advisable to attempt to bring the business of bookmaking within the scope of the words ‘other commercial business’ in paragraph (b), and the same objection would apply in the case of paragraph (c), which is in this connection dependent on paragraph (b).

As regards the application of paragraph (e) to the question under consideration, the objection stated in your memorandum appears to me to be a good one.

I think, however, that paragraph (d) is applicable to the case.

In the Oxford Dictionary, one of the definitions of the word ‘profession’ is given as ‘the occupation which one professes to be skilled in and to follow’, and it appears to me that the word may, in paragraph (d), be given this extended meaning.

In my opinion, therefore, bookmaking as carried out by the officer referred to in your memorandum may be regarded as a ‘profession’, and I think that that officer, by acting as a licensed bookmaker, has infringed section 91 of the Commonwealth Public Service Act 1922–1924.

[Vol. 22, p. 658]


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