The Dominion. THURSDAY, APRIL 3, 1913. THE SUBJECT & THE CROWN.

Dominion, Volume 6, Issue 1714, 3 April 1913, Page 4

The Dominion. THURSDAY, APRIL 3, 1913. THE SUBJECT & THE CROWN.

During, Easter week a decision of the very highest importance was given- by tho High Court of Australia on a- question involving the rights of a subject as'against the Crown (or the local Executive of the Crown). From time to time during' the last few years we have had occasion to deal with this matter, apropos of i various attempts by the old "Liberal" Government to claim, either by legislative or administrative act, the power to deny to the subject the right to secure justice through the Courts' against or from the Executive Government. The examples which will first occur to those of our readers who follow public events closely will be ; first,, the harsh and tyrannical Toryism of- the Ward Government's refusal to waive its powers of executive oppression under the Crown Suits Act,' and second, the same Government's proposal, in one of its Bills,' to vest in a Departmental ofliccr certain powprs against holders of land, and to deny to such holders of land the right of appeal to the Courts of the country. Weßhall see presently how x important, is the principle that . the ■ Courts shall be kept open to the subject to protect him against Executive despotism—a principle which the Chief Justice of England stressed three, or four, years ago in a famous speech, which we bavo often quoted. The case before the High Court of Australia arose out ;of the claim of the Marconi Company against the Federal Government for damages for infringement of the Ma it con i patent®. Tho main question is still undecided. The company, made application to tho Government for the right to inspect the Commonwealth' apparatus, with a view to discovering the extent, if any, bf the infringement. In December, 1911, when the Estimates wero before the Federal Houso, the Postmaster-General, Me. Fkazer, said: "-Realising that the establish-, mcnt of wireless stations is a necessity, we have adopted a particular system, and if it be found that we are infringing patent rights, we shall meet our liabilities as a Government oould do," Yet in spite of this honest-looking statement, the Government, when it came to the point, refused, to permit, on the ground that State secrets would be. imperilled, that inspection which could_ alone finally determine the question whether patent rights had been infringed or not. The High Court decided by a majority against tho Government's tyrannical assertion of an old Tory principle. The Government based its case, to quote the Chief Justice's judgment, "on the well-known doctrine that the production of documents relating to affairs of State will not bo compelled if it is claimed by the bead of the Department having custody of them that, their production would be injurious to the public interest, and that he'and not the Court is the judge of that fact." The plaintiffs conceded this, and conceded that the doctrine extended tu other thinga, such as fortresses or

ships of war, but they held (.hat it was not enough for a Minister or Departmental official to say that a particular thing was a State secret. They claimed that the Court should decide the question; and the Court, as we have said, decided that it was preposterous to urge that the inspection of the apparatus which the sought could in any way bo injurious to the public welfare, especially as the specifications of all existing patents had already boon published as an essential to registration. As the Chief Justice pointed out, the Government's claim of privilege was as absurd as would be their claim to conceal a document of which the text was public property. .. The Government made, indeed, no serious attempt to show that the public welfare could bo damaged. It merely relied upon its idea that the Executive can be supreme over the subject, and. that the Government can commit a tort, and can close the door of justice against tho victim by simply refusing to submit itself to_ judgment. Mr. Justice Isaacs, in his dissenting judgment, himself made no attempt to show that in this case "the public welfare" was an adequate or even truthful plea. Ho simply held that the Executive must be supreme, and that Minister's ipse dio:it must be implicitly accepted, and must be held in such cases to be an insuperable barrier between the subject and the Courts. Whatever anyone may urge in defenco of tho, Executive's power to deny justice to any person making a claim against the Crown, whether in contract or in tort, it is a bad power. It was stoutly defended on the Government's behalf on many occasions, and in many ways during the later years of the defunct "Liberal" Administrations in this country. And perhaps some time or other Mr. MAssEY.may find himself advised by a Departmental head to back-up this evil principle. For our own,part, we have always detested Cabinet absolutism, and always shall, when it is exercised againsta subject seeking redress in a case in which, if the Government were a private individual, the Courts would bo open and would Ik supreme. As the Melbourne Arr/us pointed out —and it is a little amusing to remember that because it is not Socialist, the Arr/us is called by its enemies a Tory paper->-"Mn. Justice Isaacs's' .law is Toryism of tho most extreme order," and' "justifies on the part of King Cabinet' [which in this case is King Caucus in the Trades Halll conduct such as brought a King Charles to the block, and sent a King James packing" : In tho case (wo are reminded) of Sir Thomas Darnell and others imprisoned by Charles I without cause shown, tho Crown lawyers argued, oa Mr. Justico Isaacs's liites, that reasons o£ State made it inexpedient. from tho point of view of the public interest to disclose tho reasons for thr> arrest. Again,'ill the famous Hampden . case, tho Crown lawyers contended that the King had to see to the defence-cf the country, and that in anything appertaining to (i.e., which he declared to be appertaining to)'that duty, he must not 1)0 hampered by tho ordinary law or by Acts of Parliament. In the specch to which we have referred, the Chief Justico of England observed that, in the past tho Judges and the Courts had had to defend the subject against the King., Nowadays, however, lie said; nobpdy feared that, the King would ho otherwise than a friend, of his subjects, but there was a possibility that the Courts'might have to protect the subject against the tyranny of the Executive. To thoso who have realised h'ow Labour-Socialism rest& upon the denial of individual rights, it is not at : all surprising that the old Tory itlca which foolish or tyrannous Kings once lived by should be revived in the present age by LabourSocialist Ministries. , It is to exalt the Executive, and secure a tyran- : nous-power to the Ministry of the day, that the Federal Government has been so anxious to break down the High Court of Australia.