GOVERNMENT BY COMMISSION.

Dominion, Volume 3, Issue 927, 21 September 1910, Page 5

GOVERNMENT BY COMMISSION.

he, practice of appointing commissions of inquiry on various subjects is...one oi' . considerable'interest to the community, .and .deserves attention ~in several -of'its pkasts. This letter deals with such - commissions generally, and then particularly;-with the appointmont 'hereon of Judges, of the Supremo Court. Ihe power , of. appointing such •'••commissions in -New Zealand is derived in two ways: (1) from -powers vested in tlie Uoveruor,. by the .Crown, under his commission, and (2) under the terms of the Commissions of Inquiry Act, 1908. iu -.case, . the .Governor, upon the ■ advice ofa Minister, niay appoint a-commission, and, in the second, the appointment is made ■by the ■ Governoria"p°uncil. , The. second section of the ..Act, before mentioned,- defines the subjects of inquiry to be-(l) any question arising out of the 'administration of; the Government;. (2); tho working of any. existing law; (3) .the necessity.or expediency of ;any. proposed legislation;, or (4)- concerning the conduct of any . public officor. It ..will . be ; seen the .power conferred is .very, extensive; and while it is conceded that when. such inquiries are confined to matters of detail,-or: other legitimate inquiry, they serve- ai ; useful purpose, -yet the-point- .to be - made clear is that in recent.- years there seems' to have Ibeen a. desire, on the'; part of, the Executive to be. l'elieved .of- its, proper .duties;; by appointing • commissions - upon- subjecfis the principles and objects of which ought to be .discussed- and.- settled ;in Parliament.] In fact,, the commission is'-'appointed to feel the .'pulse of-the, .country, and. having, done so to . advise the adoption of a policy.. An important subject having engaged ; the attention of. Parliament, and the : issue being" .'doubtful, the ' difficulty is" .tided over by the. promise of a commission. Further debate or - action ;in Parliament ceases,-- and: the : commission,-' ; being,-duly appointed,'; sets out' on ; such ' inquisitorial '. adventures as : may. be. .before it.On its piirt . Parliament willingly abdicates its functions, and is not anxious .to assume responsibility,.'so'.when the, report of the" commission is' laid before'; it, ■ the dpcuin'ent- is treated by members ,as :if.it were the'decisionjof a tribunal'from which- there is. h0,.-appfeal.-;.. Frequently, when-legislation is' necessary to carry out tho.-rccommendations of a commission, it is. passed :.without ; serions comment,' or ' possibly ,in the. last days of ,a- session when discussion; is impossible. , ' '; It;,is laid -.down - in'. Todd's Parliamentary .', Govgrhment'.,.' (Vol: ll)that "it is : . unconstitutional to , refer ' cq a commission subjects.. • which - are connected with the elementary duties of 'the Government, and with-,its relations to Parliament; .Or with a'; view to.,evade';the; 'responsibility of. Ministers -in any matter; ; Or.'. to - do'l the 'work.'of existing Departr merits.'.of .State, .who: all heedful ■facilities :for ; obtaining information' upon questions' of' detail, rind who': are 'directly responsible to; Parliament; , or, to -inquire 'into'-' crimes and offences - committed by /particular individuals . which ' are,, cognis,able ;in:: tl\e ordinary courts of law." ~;■ V-The' authority .to issue' -these, commis-: sions s of inquiry .was clearly not intended '.Ui ; absolve the Executivj Government froin -its, proper duty .'of' ' me'a-. sures :of public policy, or ,'to ignor&\ thp ; f mictions of Parliament; 'but it 'is sub'.mitted : that .the , Land. Gonunissioh ::.of' •1905, .tho more reennt . Timber.., Commis-'' siph, ; ',ahd. that' relating■■ to •' tho 'administration'.'of ,aiid dealing Avitlx Native jands,; iali came within '; the,-,restrictions, .above quoted, aii'd - related, .to matters ,:Upon which- the' Executive could havo obtained the'; .necessn'l7. information...by means ,:;of .'l%liamentar^^'''''Cqmmitt«es > -''.6r' througn Deparfpjpnt'al officers, : under: the' control ;of; ,the';. Government. 1 - ' Other instances could bo cited, "but-uhe of'.a 'different be'/nientioned,'"as': it.shows tlie'.;:danger* of.; departing-"from- :'pi'6per- ; • •. In the • Ohinem'urilnquiry -. :;tlie.,, duty "■ Imposed, .upon the; Commission appointed by' the':Goyeriior-in-Cbuncil-. -.was!to'ascertain'whether'nio'iiey : w.aa paid' to; certain'- members of ', a. vliceiisihg committee'las. bribes ;td' support' an','applica-. ;tio'n.;:.fora, license.: ' Legal' 'proceedings were -taken ' to' : prohibit ,t.ho;. commission from- proceediiig,;and ultimately the; matter'.came 'before: . the;'-' Court -of,: Appeal, which; held that the Governor-in-Council Was : not authorised -, to-;apnoint 'a ' commission -to. make, the- inquiries mentioned; that. .the ' Order.-iii-Coun.cil created an offence: 'unknown to the law: •had 'sot up a new Court,. .and alloiwed'a person -,to .bo ; charged' with, ' and tried ' and ' punished for : .thp'.pifoncc,an that, Court.. The whole judgm'uht-is most* instructive, /and ;an'aptcommentary, . on; .the - present; subject,;be-: cause', )ia<l not this question ;been leg-; ally . decided, 1 : a precedent ..would; have been established for further exercise -of the'" same : illegal power, 1 ' and New.; Zea-. ■landors ' niight .lmve/' to., their cost, to; adapt ; the,.language .of Portia,;""that many Sn error by-- the', same, example,had. r.ushed into,'the State.",: If such a case had bcciirred- in. England,tho. : ;V Govern-; .merit , by' whoso advice: the cominissioh had',.issued: .would, - most' likely , have, been': 'hurled -''from'' "office—less .causes"' havo done'; so .in our' history. '' .In' Zealand, it "does, not .appear- that. Parliament,' or .press,-'; or; public..seriously cpnccmod'themselves;ln the,tiiauer; uw latter probably ' only thinking ' that tho licensing. laws were in a dreadful state of, muddle, and.sadly needed amendment! .All:' look ,on complacently- at what wiis really., a grave infraction, of the - principles ; of', constitutional law,' .and :a jreflection of' a serious ' nature on the. Executive Govammeht. . Happily, the decision ,of '.the . Courtof Appeal has sa;ved the country-from further attempts to revivo :the' days; when-.the Star: Chamber.: flour-ished'in-England. : ■, 'But _not.' only.'/are.M these zeroises .' of Executive. authority - unnecessary •in many cases, but the cost-, to the country is enormous,: and out ; of-..a1l proportion: to the ; benefits received, ' as' the: reports '• of . cbmmissions are frequently, not acted on, and are relegated. to. obscurity. :' . '■ : In England.when. 1 a.question,is of sufficient, importance to ' .inquiry ', a 'special Act , is 'often' passed, giving all necessary '-powers., to. '.give effect: toVthe scope of the '.commission, ,'and 'providing for the -cost',-,' ',- •;.;■■ ''. Tho. inquiry into the charges made' bv "The, • Tinies" y against Mr. Parnell and others is ■an .instance where; the;. Special Commission Act." 1888, appointed, the com : missioners, ; and. made , all other necessary provisions: ' . v ■ . '• ; Tho second part of, the subject is of greater; consequence.:to the community than' the first.; ; 'ln'certain , cases, relating to legal reforms, or the practice and procedure of Courts of Justice, the appointment of judges on'commissions-of inquiry isi.of great; . assistance -to. Governniem;; but , in no particular person's liborty.is likely • to. at-stake,-..and no right' in 0r.,t0" property" is. involved:lt .seems clear; that judges should .not' be appointed ; where .the i. functions 'of the' Executive Government are likely to be in qHiestion or, interfered with, or where rights., of parties are • concerned, or the law . has already made sufficient, proyisiori, otherwise. : Some recent instances may. bo stated' where -those principles havo. been, contravened. ' Under, the ,Native x Land Commission, the Chief Justice ,was. detached, from' .his proper ■ duties for more than a year,:in.order that'he might undertake administrative functions regarding Native lands,-which could, and ought to,: havo been carried. on t. by the Minister having,- charge of that Department. .With singular; . irony, another Minister having, special knowledge of Native land law was. associated with tho Chief . Justice—tlius constituting the lat■ter a- sort of non-official member of- the Executive. - • .Again, recently two-judges were appointed to-make' inquiries into charges against a civil:servant- ,The-statute law and regulations under; it already provide j how such inquiries ure tub" conducted, but:,this, course was not then, followed. The judges^appointed, made their inquiry ill .'camera, - ana tho result' has nover been inade public.' At a- later date a prosecution of certain offendersapainst the .revenue laws had been instituted; arid l iollowing this . an inquiry under the Public .Service Act was, ■ hold in tho ordinary way, and tho civil servant was called upon to resign his office. But why should the judges have,boon asked to act as legal , advisers or, servants of tho Government in the case referred to, and do what the Government had 'already legal machinery.'at hand to accomplish, and ought to have undertaken? It is frequently suggested tliat inquiries of various kinds should bo held • before judges of the ' Supreme Court. Quite lately a member of the House of Representatives, in supporting certain allegations he had made, offered to lay the uvideuce ill his possession before two judges. Hoing a member of the Opposition, his offer-was, luckily, not accepted.