The Dominion. SATURDAY, MAY 28, 1910. COURTS AND CONSTITUTIONS.

Dominion, Volume 3, Issue 828, 28 May 1910, Page 4

The Dominion. SATURDAY, MAY 28, 1910. COURTS AND CONSTITUTIONS.

A cable message from Melbourne printed in Thursday's paper reminds us that a very serious question may force its way to the front in Australian politics should the Labour party seek to carry out any very advanced "Federal" programme. Some of the aims declared by the more enthusiastic members, of Mr. Fisher's party involve the passage of legislation of a kind that may be adjudged by the High Court to be in contravention of the Constitution, which sets the limits to the legislative powers of the Parliament and of which the High Court is the interpreter. The cable message referred to reports Mr. Maloney, a, member of the House of .Representatives, as saying, in reply to the suggestion that the Court may block some of the Labour party's legislation, that "the day of obstruction by the High Court or Legislative Councils had passed," and that "these' institutions were not in consonance with the democratic declarations of the people." It is in the check imposed upon Parliament by the Constitution that the government of Australia resembles that of America and differs from that of Britain. In America the Supreme: Court has often been called in to set aside statutory enactments as unconstitutional, so frequently, indeed, that there is a strong feeling growing up against "government by injunction," particularly in Labour circles. In Great Britain, on the other hand, the function of the Courts is merely to interpret the intention of Parliament, which can do anything that is not naturally impossible. Occasions sometimes arise in Britain, however ' —the case of Osborne v. the Amalgamated Society of Railway Servants is one of them—in which, the intention of Parliament not being clearly discoverable, the Courts have to fall back on the dominant organic law for which we have the phrase "public policy"—on an unwritten Constitution, as it were.

The omnipotence of Parliament, and the relation of the Courts to it, are questions that are constantly cropping up, and that are likely, with the increasing tendency of Executives to take to themselves the functions properly exercisable only by the Parliament, to-crop up still more frequently in the future. Our readers may remember that a year or so ago we drew attention, d propos of one or two glaring cases of '; denial by the Government of the right of aggrieved individuals to have recourse to the Courts of the land, to a remarkable statement by the Chief Justice of England. He said that the judges had once stood between the people and the Crown, but that tho position had changed, and that "the judges might be callod upon in the future to protect the interests of the subject against the Executive." Originally the British judges had very large powers in virtually annulling Acts of the legislature, and instances of such action arc neither few nor unimportant. As the London Times pointed out in commenting upon the Chief Justice's statement, the British Courts "havo done |

much of their best work by exercising :l strict and even jealous supervision over the action and proceedings of the Executive. They have called officials to account, disregarded the orders of the superiors of the impugned officials, and refused, failing the most explicit terms in a statute, to allow the ordinary rights of citizens to he abridged by the prerogatives of public Departments." Jor the old tyranny of tho Crown there has been substituted a new tyranny just as bad. In New Zealand more than in any other country, perhaps, is this fact plainly apparent. A recent example of the kind of thing that Lord Alvekstone would consider a subject for the exercise by the judges of their duty of protecting the people against the Executive is the Government's use of the Crown Suits Act to curtail the personal and property rights of individuals or companies. The laws of the last few year? are honeycombed, too, with clauses giving to servants of the Executive an authority above the Courts in matters affecting the rights of individuals. When Lord Alveestone set a good many people thinking rather enviously of the check upon hasty legislation that exists in America, he could not have foreseen the present Constitutional crisis, which lias brought to the front the question whether the unwritten "British Constitution" may not be embodied in a full and formal instrument. Opinion on this point is of course greatly i divided in Great Britain. The nation has got on very well so far without a written Constitution, and no doubt, although it may have its crises and its tips and downs, it will continue to get on pretty well. The great obstacle in the way of getting a written instrument, either for Britain or for the Empire, is the time of day. When the Americans drew up their code, they were not distracted by those bitter class and party differences that are ' almost bringing Britain to a legislative deadlock and confounding progress in a scrambling din of half-policies. The magnificent product _of their conferences in 1787 remains as a model, to be sure, and there. is enough statesmanship in Britain to adapt it to the needs of the age and of the nation if that statesmanship could set itself free from the quarrels of the day. The increasing tendency of Governments to usurp the supreme power once held by the Crown and later by the Parliament may or may not call for a Constitution for Britain, but it certainly should warn all those countries in which the High Court can set aside enactments that arc incompatible with organic law to hold fast to their safeguard against the new tyranny.