In the result, the plaintiff, in my judgment, fails on both points.

The questions of law submitted for our decision arise out of the following facts. A charge of improper conduct having been made against the plaintiff under sec. 46 of the Commonwealth Public Service Act 1902, he was suspended by the Chief Officer of his department, and having been furnished by that officer with a copy of the charge and required under sec. 46 sub-sec. (2) (b) to state in writing whether he admitted or denied the truth thereof and to give any explanation in writing he might think fit, he in writing admitted that the charge was true. That written admission was made and communicated by the plaintiff to the Chief Officer on the 21st December 1905, who on the same day took action on it and recommended the plaintiff's dismissal. Two days afterwards the plaintiff wrote to him withdrawing the written admission. No effect was given to the withdrawal. The Chief Officer's recommendation afterwards went on to the Public Service Commissioner, who on the 10th January 1906 reported for the consideration of the Governor-General with the advice of the Executive Council that the plaintiff should be dismissed, and he was dismissed. The plaintiff now contends that the dismissal was wrongful on the ground that he had not admitted in writing to any Board of Inquiry the truth of the charge, nor had it been found by a Board of Inquiry to have been proved. The defendants, conceding that the case was never referred to a Board of Inquiry, contend that the plaintiff's written admission made in answer to the Chief Officer's communication is an admission of the charge within the meaning of sub-sec. (5) of sec. 46. The plaintiff replies that the words "If any such charges are admitted" in that sub-section do not refer to such an admission, but to a written admission under sub-sec. (4), and argues that the only written admission which would justify his dismissal is a written admission made to a duly constituted Board of Inquiry. He further urges that he was entitled to withdraw his admission at any time before it had been finally acted on by the Governor-General in Council, and that, as it was withdrawn before that stage had been reached, there was not in existence any admission by him of the truth of the charge at the time when dismissal was ordered by the Executive Council. We have now to determine whether the plaintiff's contentions are sustainable.

To my mind there is no ambiguity in the language of sec. 46. Construing the words in sub-sec. (5) "If any such charges are admitted" according to their ordinary meaning in the context in which they stand, they are capable of including a written admission to the Chief Officer under sub-sec. (2) (b) as well as a written admission to the Board of Inquiry. But, as an ambiguity has been suggested, it will be well to see what light can be thrown on the meaning of the words by a consideration of the purpose and scope of the group of sections in which sec. 46 occurs and of the law as it existed in the States before the passing of the Act under consideration.

Until comparatively recent years the common law incidents of service under the Crown attached to all contracts of employment in the Public Service of the States. One of these incidents was that the public servant held office only during the pleasure of the Crown, and that it was the right of the Government to dismiss him with or without cause at any time it thought fit. But since 1874 in all Statutes regulating State Public Services this common law incident of employment under the Crown has been modified to a certain extent. The Victorian Act of 1890 and the New South Wales Act of 1895 may be taken as examples; their provisions in this respect are practically identical. They leave the right of the Government to dismiss for any cause other than misconduct as at common law, but provide that no Government may dismiss a public servant for misconduct without giving him an opportunity of disproving the charge. In giving these rights the several Statutes lay down the procedure to be followed, and it was decided by the Privy Council in Gould v. Stuart[3] that the right of the public servant to demand that the procedure shall be followed becomes in such cases a term of the contract of employment. To make these rights effective it is essential to constitute a tribunal which shall have power to hear and determine whether the officer has been guilty of the misconduct charged. Under the Victorian and New South Wales Acts the tribunal was the permanent Board which administered the Act. Both Statutes recognized, as all our forms of criminal procedure do, that there are cases in which the accused himself may desire to admit his guilt without further inquiry, and that, in such cases, if proper safeguards are taken to ensure that the admission shall be deliberate, well considered, and definite, punishment whether by dismissal or otherwise may as fairly follow the admission as it may follow the adverse finding of a tribunal. In both Acts a written admission of the truth of the charge to the Board relieved that body of further inquiry, and punishment followed on the admission just as on a finding by the Board that the charge was proved. The Permanent Head of the department was empowered to hear and deal finally with minor offences not sufficiently grave to justify their being sent on to the Board, but where they were grave enough for the Board to deal with that officer was obliged to send them to the Board for inquiry. And to the Board alone was given the power in such cases to receive a written admission that the charge was true. But in the Commonwealth Public Service power is for the first time given to the Chief Officer, whose position is analogous to that of the Permanent Head in a State service, to call upon the officers not in the Administrative Division in case of all charges whether grave or trivial to make a written statement to him in the first instance declaring that the charge is either true or not true. It is merely an extended application of the principle already recognized in the State Acts that punishment may as fairly follow an admission of guilt made under proper safeguards as it follows an adverse finding of the tribunal. In effect it gives the Chief Officer power to call upon the person charged to plead guilty or not guilty at the initiation of the proceedings. It would be obviously impracticable in the administration of a Public Service extending throughout Australia to refer the determination of the truth of every charge of misconduct to the Public Service Commissioner. Some form of local tribunal immediately available is essential, and it is by reason of the constitution of these local tribunals that the necessity for endowing the Chief Officer with this new power has arisen. Under the State Acts the Board was a permanent institution holding inquiries as part of its ordinary duties, and a reference to it would in no way disturb the daily routine of the departments. But in the Commonwealth Public Service a special tribunal is constituted for the hearing of each charge, one member being an elected representative of the Division to which the officer charged belongs. In a tribunal so constituted each member has his daily duties to perform, and it would seem to be only reasonable in the interests of business-like administration that the legislature would provide that the tribunal should not be assembled without some real necessity, and that there should be devised, if possible, some procedure by which in the initial stages of the charge the Head of the Department could ascertain whether it would or would not be necessary that the truth of the charge should be investigated.

Having, as it appears to me, that end in view, the legislature has in sub-sec. (2) (b) empowered the Chief Officer, an officer of high position and responsibility, to call upon persons charged, not being in the Administrative Division, to plead guilty or not guilty, thus sifting out at the very outset those cases in which an inquiry will be necessary from those in which it will not. Where to the Chief Officer's written requirement the reply is an admission of the truth of the charge the case must go on under sub-sec. (5) to the Permanent Head, the Commissioner, or the Governor-General, according to the Chief Officer's view of the gravity of the charge and the punishment appropriate. If the answer to the Chief Officer's requirement is a denial, the case must go for inquiry to a Board specially constituted to investigate that particular charge. In either case the Chief Officer has before him the accused officer's explanation of the charge, if he has thought fit to accompany his denial or admission with an explanation, and it is the Chief Officer's duty to consider and report that explanation equally with the admission or denial of the truth of the charge.

Thus the Act ensures that the assembling of the Board of Inquiry, with the attendant inconveniences to the working of the department, will only take place where there is something for the Board to inquire into, and that it will not be constituted and called together merely for the purpose of receiving an officer's written admission of the truth of the charge made against him.

Having regard, therefore, to the real object of the sections, which was to give a right of inquiry before dismissal or punishment for misconduct, and to the procedure adopted for giving effect to those rights, and to the geographical conditions under which an Australian Public Service must be administered, I am of opinion that the legislature, with the view of carrying out without any unnecessary friction the system laid down in the Act, did intend to empower the Chief Officer to sift out cases in which inquiry into the truth of the charge was necessary from those in which it was not, by enabling him to receive and act upon a written admission of the truth of the charge. In my opinion the legislature has, in sec. 46, used apt words to carry out its intention, and therefore the words in sub-sec. (5), "If any such charges are admitted," include a case such as this in which the admission has been made in writing to the Chief Officer under sub-sec. (2) (b). It follows that, in my view, the Chief Officer was justified in making his recommendation on that admission without sending on the case to a Board of Inquiry.

I can see no ground for Mr. Cohen's second contention that the admission of the truth of the charge must be considered as nonexistent because the plaintiff withdrew it in writing, even though that withdrawal was after the Chief Officer had taken action on it, and although the withdrawal was without that officer's consent. Assuming for a moment that the analogy of criminal procedure applies, a plea of guilty when pleaded becomes a record of the Court and cannot be withdrawn without the consent of the tribunal. Similarly it would seem to follow that the written admission, which has become an official record, and has been acted on as such, could not be withdrawn unless by the consent of the head of the department - but I doubt whether the analogy, if it exists, between a plea of guilty in a criminal Court and the written admission under sub-sec. (2) (b) is a safe guide in the determination of the question before us. The rights of the plaintiff must be founded on the Statute, and the only matter for inquiry is what effect has the Statute given to the written admission of the officer charged? If his statement in answer to the Chief Officer is a denial, the Act gives him a right to inquiry by a Board duly constituted. On the other hand, if his answer is an admission of the truth of the charge, the Act gives the Chief Officer a right to make a recommendation, and there is nothing in the Act which authorizes the officer to withdraw his statement merely at his own will and pleasure, or which gives his withdrawal any operation on the Chief Officer's right to act on the original admission.

In my view, therefore, the plaintiff's withdrawal of his written admission in no way affected the validity of the action taken by the Chief Officer, or any action which followed it. On both grounds the plaintiff must fail, and judgment must be entered for the defendants. I may add that I have had the opportunity of reading the judgment of my learned brother the Chief Justice, and I entirely concur in its reasoning.

In this case I am unfortunately unable, after much consideration, to concur with my learned colleagues. The question is as to the construction of sec. 46 of the Commonwealth Public Service Act 1902. Can the Governor-General resort to the extreme penalty of dismissal, in the case of a clerical or general officer, on bare admission of the offence, and without any report as to the circumstances from a Board of Inquiry? It is clear that in the case of an officer in the Administrative Division, the Governor-General cannot do so (sec. 47 (3)). It is also clear that if the officer in the Clerical or in the General Division deny the offence, the Governor-General cannot do so (sec. 46 (3) and (4)). Moreover, it is clear that the inquiry as to the truth of the charge is distinct from the "investigation and report" required of the Board; for the Board's first and main duty is to investigate and report; and it is only in the case of the suspended officer not admitting the truth of the charges that the Board has to go further and "inquire into the truth of the charges." This means that sub-sec. (4) of sec. 46 applies, not only to the case of denial of guilt, but also to the case of admission of guilt. The question is, can the Governor-General on the recommendation of the Chief Officer (the departmental head in the State) ignore sub-secs. (3) and (4), and forthwith recommend dismissal, if there be a bare admission of guilt. For instance, drunkenness is an offence. A man may have been made drunk by drugged liquor, by way of a practical joke. If he be charged with the offence, and if he be truthful, he will admit it. But is he, under sec. 46, entitled to have the circumstances under which he became drunk investigated and stated by an impartial Board? The Governor General - if the argument of the defendants be accepted - will not (necessarily, at all events) have anything before him but the written admission of guilt, and the recommendation of the Chief Officer. The officer charged may have accompanied his admission of guilt with a satisfactory excuse; but the Ministers will have nothing to guide them in the exercise of their discretion as to dismissal except the recommendation of the Chief Officer. If the man, untruthfully, has denied the offence he fares better; for the Board must inquire, and must consider and report any extenuating circumstances. Does the section put this premium on lying?

I have come to the conclusion that the section contains, in due order of its sub-sections, a complete code of procedure, and that the Chief Officer and Ministers have no right to skip over the provisions of sub-secs. (3) and (4), no right to apply the provisions of sub-sec. (5) as soon as the officer has admitted the bare fact of the offence under sub-sec. (2). Sec. 46 (1) makes certain facts (or defaults) offences, for which an officer is liable to punishment. Under sub-sec. (2) if there be a minor offence against discipline, the Chief Officer may content himself with a reprimand or caution. If he think this penalty not sufficient, he may suspend the officer, furnish him with a copy of the charge, and ask him to state in writing "whether he admits or denies the truth of such charge, and to give any explanation in writing as to such offence for the consideration of the Chief Officer." This evidently means that, even if there be an admission of guilt, the Chief Officer is to take into consideration mitigating circumstances. The truth or falsity of the charge is one thing; the circumstances of the offence are other and distinct. Then under sub-secs. (3) and (4), the Chief Officer, having received the officer's answer, has three courses open to him, which seem to exhaust all possible contingencies: -

If he think the alleged offence has not been committed, he is to remove the suspension.

If he think that the alleged offence has been committed, but that it is not serious enough for a Board of Inquiry, he may reprimand or caution, or he may fine the officer a sum not exceeding £10.

If he think that the alleged offence is serious enough for a Board, he may refer the charge to such a Board "for investigation and report" - "and if such suspended officer does not in writing admit the truth of the charges made against him such Board shall inquire as to the truth of such charges"; and "after fully hearing the case" the Board is to "report to the Chief Officer the proceedings and evidence taken and their opinion thereon." Sub-sec. (4) is complementary to sub-sec. (3), and would, no doubt, have formed part of sub-sec. (3), but that the provision for the case of a Board required many words, and would have made sub-sec. (3) too lengthy and cumbersome; and these sub-sections cover every case, and are applicable to every case, as soon as the accused officer has sent in his written admission, or his written denial, with or without explanation. It will be observed that, if the Chief Officer believe the offence to have been committed, he has to consider any explanation offered; and he then has to determine in his mind whether the offence is sufficiently serious for a Board, or so trivial that it may be dealt with by a fine. If the Board become seised of the case, it has to "investigate and report." Such words are not unfamiliar in cases in Chancery, where the Court refers a matter to a Master or a Chief Clerk for general inquiry. The Board is to report its "opinion," after fully hearing the case. There is not one word limiting the functions of the Board, or the operation of sub-sec. (4), to the case of denial of the offence charged. On the contrary, the Board is not to inquire into the truth of the charge unless the accused fail to admit in writing the truth of the charge: - "and if such suspended officer does not in writing admit the truth of the charges made against him, such Board shall inquire as to the truth of such charges." I quite agree with my colleagues that there is no need of a second written admission before the Board; but that does not conclude the matter. I cannot help thinking that the use of this extreme argument for the plaintiff has tended to obscure the plaintiff's true case. The point now is that, even if the offence be admitted, there can be no dismissal without an inquiry into the circumstances. It is not now contended that the Board must go through the form of inquiring whether the offence was committed where the officer admits that it was committed. The contention is that in all cases, as a condition precedent to dismissal, or any of the graver penalties, the Board must investigate the circumstances, and report the proceedings and evidence and their opinion thereon. Then comes sub-sec. (5): - "If any such charges are admitted or are found by the Board of Inquiry to be proved, then on the recommendation of the Chief Officer" the Permanent Head may impose a penalty, or deprive of furlough, or the Commissioner may reduce him; or the Governor-General may dismiss him or require him to resign. The defendants urge that, by virtue of these words in sub-sec. (5), they have a right to dismiss on an admission of the offence under sub-sec. (2) (b), although the Chief Officer has not applied his mind to the exercise of the discretion vested in him by sub-secs. (3) and (4) either to fine or reprimand the officer, or to send the case for inquiry to a Board. That is to say, the defendants' argument is that the power in sub-sec. (5) can be applied directly and immediately on a mere admission of guilt under sub-sec. (2) (b) without the safeguards provided by the intervening sub-secs. (3) and (4). I cannot think this is to be the natural meaning of the words. I think that, before recommending dismissal, the Chief Officer must decide between inflicting a fine (or reprimand) and sending the case to a Board with a view to graver penalties. The object of the section, with its elaborate machinery, was clearly, to my mind, to prevent the despotic exercise of the power of dismissal, or of imposing any of the graver penalties, on the mere recommendation of the Chief Officer, and without regard to the circumstances of the offence, whether it be admitted or denied. I think that the consideration of extenuating or aggravating circumstances is necessary in the case of an offence being regarded by the Chief Officer as serious; and that it is made as necessary in the case of the offence being admitted as in the case of its being denied. It is curious - and satisfactory to myself - to find that I can agree with nearly everything said by my learned colleagues on this part of the case. But our conclusions as to the construction of sec. 46 differ. The difference arises because, as I respectfully think, sufficient attention has not been given, (a) to the fact that the main and primary function of the Board is not to inquire into the truth of the charge, but to investigate and report as to all the circumstances; (b) to the fact that the Board is not to come into action except for the graver offences, involving the graver punishments; (c) to the fact that too much strain is put on the word "alleged" in sub-sec. (3) - as it is often used as equivalent merely to "charged" in such a phrase as "alleged offence"; (d) to the fact that sub-sec. (4), as to the Board, cannot be put aside by the Chief Officer unless he also put aside sub-sec. (3), with its power to fine; and (e) to the fact that any construction other than mine strikes out of the Act the power of the Chief Officer, in the case of an offence being admitted, to fine (or reprimand) instead of proceeding to recommend the graver punishment. I prefer to rest my decision on the grounds which I have stated. But I must add that, on the narrow construction of the section, I do not see how the words used in sub-sec. (5) apply to the peculiar facts in this case. On this part of the case, however, I do not speak with confidence. But the natural meaning of the words of sub-sec. (5) is that the Governor in Council can dismiss "if any such charges are admitted" - that is to say, if there be, at the time of the exercise of the power by the Governor in Council, no dispute between the accused and his superiors as to the fact of the commission of the offence. Here there was such a dispute. On the 21st December 1905 the officer admitted the offence. On the same date the Chief Officer recommended his dismissal; on the 23rd December 1905 the officer withdrew his admission, and on the 23rd January 1906 the Governor in Council purported to dismiss him. We are not informed of the nature of the offence, or of the circumstances under which the admission was withdrawn. But it is quite conceivable that a man may admit the charge under a mistaken impression as to its full significance, or as to the duty imposed upon him by the regulations; and I do not know of any principle of law which should preclude him from withdrawing an admission before it has been acted upon. A man may withdraw an offer before it has been accepted. By leave of the Court a prisoner may withdraw his plea of not guilty, or a party to an action may withdraw an admission of facts. There is no machinery provided in the Act to prevent the abuse of the power of withdrawal; for at the time of the admission of the offence the matter is still inchoate and remains within the bounds of the department. But it is obvious that the fact of previous admission would weigh heavily against the officer in the investigation. I am, therefore, of opinion that the issue of law raised by the demurrer to the defence (being paragraph 8 of the reply) and the question of law set out in paragraph (b) of the order made 8th March 1907 should be decided in favour of the plaintiff.

A subsequent application on behalf of the plaintiff for leave to amend his reply was refused.

Demurrer overruled. Judgment for defendant with costs.

Solicitors, for plaintiff, Reynolds & Larkin, Melbourne.

Solicitor, for defendants, Powers, Commonwealth Crown Solicitor.