THE, ACT STANDS.

Dominion, Volume 5, Issue 1450, 27 May 1912, Page 6

THE, ACT STANDS.

ON-IPEFENCE SYSTEM. FULL COURT' FINDS S-M. WRONG. JUDGES AGREE. LAW NOT NEW-67 YEARS OLO. On Saturday morning tho Full Court, which consisted of his Honour the Chief Justice (Sir Robert Stout), and „their Honours Mr. Justice .Cooper and Mr. Justico Chapman, decided that 'Mr. W.'G. Riddell, S.M., had erred in ■ruling that an abseutee from a mili■•tary camp should be dealt with by a ■court-martial, and not by a civil "court; and, also, that tho magistrate was wrong in holding that a soldier could not bo deemed to have failed !;to render the prescribed annual service before the military year had actually 'elapsed. ■- CHIEF JUSTICE, 'OX WHAT THE ACT PROVIDED. ■ Tho judgment of the Chief Justice ran: Vl'his is an appeal from the decision of ft stipendiary magistrate sitting in Wellington dismissing aii information against the respondent chargng him with an offence under Section 51 ■of the Defence Act, 190!)." ,'Th'iit Section' provides, interalia, that "Every person . . . . who without -lawful excuse evades or fails to ibjider tho personal service'.required of liiin under that part (that is, Part VI of the Act) is liablp to a fine not exceeding .fivo pounds," and to certain disabilities.. The respondent is a Territorial''nnder.the; Act, and, ho was notified under" the military regulation No. 215 to attend "the annual training in camp.' He did not attend, anil henco the information.' Two main grounds were relied on; by tho magistrate and by tho respondent's counsel as showing that he was not liable to tho penalty under Section 51. Tliev- were— (1) that as the training year had not ended,.ho was not liable, because htv'might attend any eAiup he pleased during the year; (2) that if lie had failed to'.attend camp he could be punished only by a court-martial. There were other subsidiary points debated, but these were tlie main contentions, and it was chiefly on; the first point that the respondent's counsel relied. Section 35 of the Defence Act, 19011, as amended by Section 8 of the Defence Act Amendment Act, 1910, provided; that tho respondent, with others, was liable to be trained as prescribed in the Territorial Force. ; I The. Duty Prescribed. Section 25 provided that the training of-the Territorial Force should in each year be as "prescribed." ' "Prescribed' is defined in Section 2 as follows:—"Prescribed means prescribed by Act, or by regulation; or' military orders hereunder." There is power to make-regulations for training, and regulations have been made. See Section 4, Sub-section (b). Tho regulations prescribed, into alia: "Seven days' annual training in camp (exclusive of -the days'of arrival and departure)." See Regulation 228,,. .paragraph (c). A "camp'- 'is defined in the Act as meaning "aiiy special assembly" of. any portion of th<) Defence; Forces for- instruction .or training-w-exercise-at a-particular- place nuthorL*ed'';'oi','vordered 'by ' the Com-mander-in-Chief' or other competent au-thority-i" By Herniation- 2-11, "the date and place .'of 'camps will be. arranged'by the brigade or coast d*feiice commander, in .'consultation with the, O.C. district" (that is the officer commanding the district). ■ This was done.' The date for a camp was fixed, and the requisite' notices given. The respondent did not attend, arfd he had no lawful excuse for not attending. It is contended that he may attend another camp during the year, if another is held in the district, and that ■ until it is seen whether there is another camp, and, therefore, not till the end of tho year, can it be determined whether he-has or has not evaded or failed to render the personal service required of him. It is clear that ho was required to render personal .sor.vire, and that he has not rendered it. Powers of Courts Martial. I -do not see how it can reasonably ba confeiide'd' that'lie' has to be' twice or; more often remitted to render the service before it can be'said that he has failed to ;.render that service. -There-is nothing in the Act or regulations allowing; him to say when he .jvill. render service.' He had to render tho service prescribed, ./ that is, ho had to attend a "camp" "when notified, and 110 had not done so. The second contention is that if he has failed to render personal service that is a military offence. ' .Even if that had. been bo stated in the regulations, it could not -repeal the provision of Section 51 of tho Defence Act, 1909. ■ As a, fact, however, a court-martial can deal "only with' members of the Territorial Force when "per•forming military diitv or going to or from the place of parade, exercise, or military duty." See Sub-section 4, Scction W, of t'lio Defence Act, 1010. Tho only other point argued was as to the incorporation of tho-Army Act so far as relates to conrts-martial. See Sub-sec-tion B of Scction 13 of the If 10 Act. That does not purport to enlarge tho jurisdiction given to courts-martial by ■Section:l3. It can, refer, only to procedure. I am, therefore, of opinion that the magistrate's decision was wrong, and must bo set aside, and tlio cose remitted to him so that he may deal with the respondent, and inflict such fine, not exceeding ;£5, as he. thinks proper. The respondent must pay *£5 55., the costs of this appeal. JUSTICE COOPER. /fEKIUTOHIATiS AND PERMANENTS -DISTINCT. After setting out the subject matter, Mr. Justice Cooper said: ■ If, however, an offence has been proved under. Section 51, then, assuming that the' respondent could have been prosecuted, under the regulations, that would not prevent a prosecution under Scnfioii - 51.' "But, in my opinion, the existing regulations do not provide for tho offence which- it is alleged tho respondent lias committed." They only provide for offences committed by a member of the Territorial Force while he is under military duty. Tho offence eharged'agninst tho respondent is Hint lis has neglected to place.himself under military duty. Regulation 200, giving jurisdiction to a court-fna'r'kial to punish a member of the Territorial Force limits that jurisdiction to offences committed when the member is performing military duty, or when he is going to or from the place of parade, exercise, or military duty, and the regulations giving power, to officers to punish men without, n court-martial limit that power to offences of a minor, character, which also must be committed while the member of the Territorial Force is on military duty. There is a distinction between the members of the permanent force and members of the Tcrrit'irinl Force. A member of the permanent force is, generally speaking, niway:.', subject to military discipline. The'members of the Territorial Foreo are subject to discipline only dnrin? the time when Miev are actually undergoing "training." or going to or from the place of training.' Attainment of Act's Object. It is. I--think, clear, therefore,, that if Section 51 does not. apply to a person who without-lawful eicnse fails to attend for the pnrposs of obtaining military training, the Act is so defective that the provisions which are enacted for the establishment and training ot members of the Tert'i tonal Force are rendered practically ineffective. In construing anv statute the Court must under the Acts Interpretation Act, 1908, give to the statute such fair, large, and liberal construction' and interpretation as will be=t insure the attainment. 01 the object of" the Act, and of every provision or enactment thereof according to its tnio intent, meaning, anil spirit-. -'Tho ohiwt of 'he Defence Acts is to make bet- , ( P r-provision for tho defence of New Zc,v land Hue of, the principal means prew "bed bv the Acts for such better provision is'the "military training, .under what i' tailed iu the Act a "universal obligation to to-train.ectffc'irf -all mail

inhabitants of Now Zealand who have resided therein for six months, and •no British subjects, and are between uio ;iges pf 12 years and 25 year-. The Legal Aspect. Tho Territorial fom> created under those : Acts consists of first, the existing voliniteer-'eorps, niul eeeonuly, those lualu persons who nre transferred the provisions of Section 23 from the gencvat training" section to theterritorial force. All the persons liable to be trained between the ages of 18 jiml. '-■> been, transferred to the Territorial foice. The statutory provisions tor the wainins of the members of the lerritonal forco are contained iu _ G of Section 35, ami in Section 2o ot tlieAer of 1110!). Sub-Section 1 of Section J.> ot tho Act of 1903, as amended by .Section 6 of the Act of 1!)10, provides that persons transferred from the general truiiiinL' section to tho Territorial ioree ..lull be trained under the provisions ot ..ectiou 25 of the Act. tinder that section the training shall be in eadi-year a? "prescribed/' "Prescribed as dehned to include "prescribed by regulations. Ke"ulation "28 defines ihe mini mum amount of training to be carried out annually bv the members of the territorial torce. This training includes (inter alia) seven davs annual training in camp exclusive of'tho days of arrival and departure. Under Regulation 210, camps may bo held at any convenient season ot . the year, The places are limited to places where works of defence, modern armament, ranges, or grounds for held training are available, according to the branch of the service; and, as, regards artillery brigades, where gun practice is possible. Under Regulation 241 the date and place of the camps are to be arranged by the Brigade or Const Defence Commanders in consultation with the the district. Under Regulation 239 eyerj member of the Territorial force is required to carry out annual training in camp as prescribed m Regulation .228. Under Regulation 215 the men required to attend at a particular camp are to receive notice of the place appointed for such camp. This noticc may be by post, or may bo by public notice given in the method prescribed by the regulations. Practical Sido of a "Camp." '••The camp consists what are called "training units" consisting of tho members of the Territorial force residing within an area group. A 'unit is defined in the regulations as meaning, so far as infantry is concerned, a battalion of infantry; and it also includes a regiment of mounted rifles, a battery of held artillery, a company of garrison artillery, a'company of engineers, ft company of tho Army Service Corps, a company of a medical corps, a company or depo. of tho veterinary corps. Ihe purpose of these regulations is therefore to assemble together a sufficient number ot "units" to insure the effective military training of the members of the lenitorial force within the area group. Ihe construction ; piit upon Section -51 by the magistrate is'that a member of the ierriforial'force cannot.be prosecuted.under that seotion until the 12 months have elapsed, and tho result of .such construc-Hon-would lead to tho Gilbertian absurdities mentioned by., the Sohcitoi'TGen-eral. The- constitution of the'' camp and tho fixing of tlie. time and place would be of no effect. Of course, if the magistrate has accurately: construed the statute the defect is in the .Act, and in the-Legislature is the only authority to cure -it. But these consequences are so serious and extraordinary as to justify the Court, if it- can reasonably do so, in construing the section in such a way as to render the Act effective. Act Can be Upheld. In my opinion this can properly ba done. Section 51 creates an offence—the offence of without lawful excuse evading or failing to render the personal service required under the Act. That personal service consists of an obligation on the part of tho memtevs of the Lorritorial force to submit themselves to military training, and to do so in f tho manner prescribed by the Regulations. Although Section 51 and Section 25, and Regulation 228 refer to tho amount of training to be carried out annually, it does not necessarily follow that no offence is eommlitted under Section 51 till the rear has expired, A man neglecting to attend -without lawful excuse has faii'ed to render the personal service required of hi in under the Act. In the present, case the respondent was ordered to go to a particular camp at a particular placo for the purpose of performing tho seven days' training required of him. Ho failed to do so, and he has shown no vaiad excuse for his neglect. It is no answer for him to say: "I will not go to that camp, because I may hereafter choose during the year to go into another camp." Such conduct, if upheld, would'be subversive of all discipline and would destroy the obligatory provisions of the Act. It would prevent the Actbeing operative. No Option for tho Soldier. Tho Act has n'ot given the respondent that opinion. Tlie effect of the sections which I liavo referred to and of the provisions of the regulations, is that tho selection of' the camp and a time at which the member of the Territorial force is to attend, is to be determined, not by a man, but by the authorities, and it necessarily must be so determined. I arrive at that result without iu my opinion doing auv violence to the language used by the-Legislature. No other interpretation of the provisions of the Act will ensure the attainment of the object of the Act. Any other interpretation will defeat the intention of the Legislature and render the Act abortive. It has _ been contended that th® consequences which will follow a conviction under Scction 51 justify a restrictive interpretation of the section. The utmost that can bo taid is that this argument may be used as indicating that the intention of the Legislature was not to enforce compulsory attendance at particular camps, selected by • the authorities, but that the choice of the camp and tlie time and place at which they should attend rested with the men. It is impossible to as>nme tluct tho Legislature had any such intention. Act Should be Clearer. To give effect to Mr. Kennedy's argument would not be fulfilling the intention of the Legislature, but destroying it. In mv opinion, the Legislature having recognised the necessity for the compulsory military training, within certain ages, of tlie male inhabitants of New Zealand, lias mado it tho duty of every such person to a-Mst in the defence of the country in which he lives, and for that purpose it has required every -such person within certain ages (not king an alien) to submit to proper training for the purpose of defence. It is not, I think, too much (» say, that a person who wilfully fails to ob'ev this mandate, and to do the duty his country requires of him is properly punished iiy being deprived of electoral privileges, "and of employment in the Public Service of the Dominion. 1 think, however, that the Act should be amended by making it clear I hat the deprivation of*these privileges shall cease .when the offender has properly rccognisd his duty as a citizen, and has submitted himself to the obligation imposed upon him by tho Statute. There is, we are informed, such a provision in the corresponding Act passed by the Australian Commonwealth Parliament. lit my opinion, this appeal must be allowed, and tho decision of the Magistrate set aside, and the information remitted to the Magistrate with a direction to convict. MR. JUSTICE CHAPMAN. "I HAVE TfO DOUBT WHATEVER.'' I have no doubt whatever about this case (bean Mr. Justice Chapman). I am quite satisfied that the learned Magistrate has taken a mistaken view ot the legislation. The Act and regulations ap- ' pear to me to be carefully framed, and to express clearly what, the Legislature intended. In Section 35 of the Act the general dutv is laid down obliging every male inhabitant of New Zealand who lias rlsidfed here for six months, and 19 a British subject, to be trained as prescribed. There is nothing new in this. We have been. eontilihously uuder the same law since March 25. 1845, when the Militia Ordinance of that year imposed that liability on all males between the of eighteen and sixty. In other words, as a community, tlie ueuple of tln» Dominion when a Crown Colony accepted this principle of universal liability to military service more than twenly years before the I'russiau victory at Koniggrath 01' Sardowa made it clear to the world that sooner 01' later it would have In be adopted by every self-respecting Stale. After this' Ilr/ninion received its institution, and at every stage of its devolnpij» Px Acta of its Fafcj

lianient repeatedly and voluntarily renewed thai, obligation. Several times within mv recollection Ihe Jlililia Act has been partly put into force. All the earlier .Statutes contain similar provisions to this one as to training and oilier duties. In tho present: Act and regulation*; they aro more ample, and are intended to be effectual to produce an actual trained military force .effective for defence purposes. "Fantastic Consequences." The respondent hero lias neglected and refused to attend a camp tor training. It is quite clear to 1110 that he has iu this committed an olienee of which the Magistrate ought, lo have convicted him. That 'offence is that he lias, in terms of Section 51, failed to render the personal service required ot him under Part \ r l of the Act. Under (section 25, the training of the Territorial Fores tu which the respondent belongs, is to be "in each year as prescribed," and here "prescribed" means prescribed either by regulations or military orders. We have, therefore, to look at the regulations to tee what; is prescriljed. Under these, an individual such as the respondent; has, by Herniation Sl-S, to attend a minimum of seven days' annual training in camp. It was argued that lie luid the whole year within which to do this. This implies that he may. choose his own time within tlie year, and tender himself at any camp, whether he is wanted or not, with all the fantastic consequences which might ensue, as the Solicitor-General has pointed out, from men at times when, or places where, there were 110 ollicers adequate to train tho numbers arriving, or officers attending in excess of requirement, because the men had not thought fit to arrive, and from such circumstances as were destined for a particular branch of the service attending at a camp where it was not intended to conduct training 111 that branch. Act, "Simple, Intelligible." It is neccssary that men should be trained with their companies, battalions, ■or other units. The suggested right to attend at will would render that impossible. A man can only attend when and where lie is ordered to attend under Herniation 215. If ho attends when not '.so ordered, he is an intruder, and may find himself liable to be treated as an intruder under one of the penal clauses found in Part VII of tho Act. A person liable to attend a camp is not guilty of any breach of duty until ho has had notice to attend a particular camp at a particular time, and has failed to do so. When he has so failed, lie is to be 'dealt with as an absentee. That means • that unless he has a lawful excuse, he has committed a breach of his individual duty. That breach is tho one pointed out by Section 51. These provisions appear to me to cover tho whole ground, and to do so in very simple and intelligible language. In construing Section 51 wo need not consider the ulterior consequences, with which we have nothing to do, and which need not in any ease alarm those who are willing to perform the duty which all alike owo to the State. With respect to the other questions, I am quite satisfied that the respondent is not subject to be dealt .with by Courtmartial, and I am by 110 means'satisfied that if he were that would afford an answer to this information. I agree that tho appeal, must be allowed with costs.