SEDITION CASES

Dominion, Volume 10, Issue 3046, 5 April 1917, Page 6

SEDITION CASES

APPEALS DISMISSED IMPORTANT QUESTIONS DECIDED COURT'S, UNANIMOUS JUDGMENT ' ■ ' ■ ■ ' '■ In the Supreme Court yesterday, tho Chief Justice (Sir Robert Stout), Sir John Denniston, Mr. Justice Cooper, and ■ Mr. Justice Chapman, delivered their judgments upon tho appeals by fiemple, Brindle, Eraser, Cooke, ami Thorn against their convictions upon charges of sedition. At tho hearing, Mr. G. Hutchison, of Wellington, represented the appellants, and Mr. J. W. Salmond, K.C., the respondents. The Court unanimously held that the appeals must fail. CHIEF JUSTICE'S JUDGMENT. Tho Chief Justice, after referring to the points of law raised for the appellants, arid, stating that he would (leal with them seriatim, said:— ( "The War Regulntions Act, 19H, has as its title 'an Act to confer on the Governor-in-Council power to make better provision. for the public safely during the present war.' Xt was passed on November 2, 19H. The Act does not purport to extend to matters or things beyond New Zealand, and none of the prisoners was convicted of doing anything outeide New Zealand. All the utterances of which complaint was made were utterances in New Zealand. What has been urged was, however, that the December regulations dealt with matters that assumed that the Government of New Zealand had jurisdiction outside New Zealand., Certain sub-sections of Section j of the Regulations dealing with, the interpretation of seditious intention and seditious tendency were relied on, namey, (a), (b), (c), (d) (,), m (k), (m), and in), it will be observed, however that charged is the publishing in AcW Zealand of seditious utterances. ! One or.two of those sub-sections niav b'e quoted. For example, Sub-Section" (b)' says, Seditious intention and seditious tendency mean respectively an intention or tendency (b) to incite, procure, or encourage violence, lawlessness or ■ disorder either in New' Zealand or in any other part of His Majesty's Dominions/ and (n) says ■. 'To incjte disloyalty whether in New Zealand or elsewhere in respect of the present war' ~ K ;t wa-e, even granted that some of jhese matters vrero beyond the power of ? "ViT to regulate, or i i ■£■ V?. ent . of New Zealand to deal with still that would not necessarily make the War Regulations Act ■„?., «°I ■J"* 0 ..*' 10 Reflations made under that Act invalid. The invalidity °L»\ E s»lations made under the Act cannot affect tho Act itself, and the sugwi H T that t ho Aot itrelf *m net iithin the competency of the General "•hole by-law bad" W - lU - 11Ot ™ k ° the Uie seditious tondenrv in 'c i > rase was to interfere ■ Semplo's Brindle'e and pi 1' ™ reor <"'"iS. In SI?? £•■■»«!& "The main argument made against all the convictions was under tfe se on" point namely, ttat tho Parliament of New Zealand had no power or iurisdic ion to enact the Military Served Act," 1916 Even were the' Act ultra vires of the New .Zealand Legislature, the appeal could not succeed on .that ground. The Eegulations .have 'not been made under that statute, nor have the seditious utterances charged been, or were, wholly a. criticism of that statute. I am of opinion, however, that Parliament had power to pass the Military Service Act. The New Zealand authority referred to by the appellants' counsel is not binding on us, as it is only a decision of the Supreme Court. The basis of that decision was not upheld in the Court of Appeal in the case of the Stewards, etc., v. the Huddart Parker Co. The High Court of Australia has held that the Commonwealth has jurisdiction in wartime regarding war outside the mere territorial limits of the Commonwealth. Tiio ]-arliament of New Zealand has power to make laws for the peace, order, and good government of New Zealand. It cannot, therefore, be suggested that , it could not make laws to defend New Zealand ■'beyond the ithree-mile limit of New Zealand's land. . . .\ To uphold the contention of the appellants would mean that New Zealand was helpless to, keep its own peace. It is not, in my opinion, necessary to rely on the provisions of the Army Act and its amendments. It is, however, of importance to uo:ice that tho Imperial Parliament, whicti tan interpret its own statutes—and our Constitution Act ie one of thorn—assumes by Section 177 of the Army Act us amended, that the colony can send forces beyond its territorial limits. It was urged that the words used in the statute meant a voluntary force. The words are: 'Where any force of volunteers or of militia, or of any other force, etc' A force by conscription would surely come within the term' 'any other force.' It was urged that conscription was so unusual and so opposed to freedom that' precise and clear words to nuthorise such ~k~ statute should be produced. It is hardly necessary to point out that for local defence there has been conscription in New Zealand since its earliest days, and before the Constitution Act, that the militia have been called up in England during- many centuries, and that tho freest' Governments in Continental Europe, the two Republics—France and Switzerland—both have a system of conscription. The Republicans of France have said that democracy and uhiveisal service are inseparable. I do not know that any enabling words can be clearer , than tho words in out.Constitution Act, which enables the Parliament of New ; Zealand to do everything that is neces- j ea'ry for the peace, order, and good gov- j i eminent of the Dominion. 11

"The authority to make regulations, and the regulations themselves no doubt, both assumed that new offences aro to be created. That was the object of the Act and of the Regulations. 'Ihe Regulations simply prescribe what the duties of citizens are in reference to the war, and the Act provides.the punishment for those who break the Itegulations. There is no validity in the objection laised regarding this point. "There is only ono offence stated in each one of the seven informations. The adding in some of the informations words disclosing the nature of the seditious intention or seditious tendency does not make the .words used separate and distinct offences. In each information one offence on one day is charged, namely, tho publishing of a seditious utterance. Tho explanation of the tendency is not the offence. Tho offence is the publishing of a seditions utterance. "The provision of Section i of the War Regulations Act is that tho offence is to ho tried before -a Magistrate, and the Regulations expressly declare that the prosecution shall take place by way of summary proceedings nnd not by way of an indictment, notwithstanding the provisions of any other Act to the contrary. (Sub-Section (c) of Section 6). Sub-Section (d) also says that the proceedings must be before the Magistrate's Court. The Act and the Regulations, therefore,.both concur instating that tlie informations cannot be tried .by jury. There is no provision for -presenting. an indiotment. ' , . .

"The' next point is whether there was aflj evidence Bβ Tr.hich, the Magistrate.

could convict. In my opinion there was ample evidence that all the utterances charged were seditious, and were uttered with a seditious tendency. The mildest utterance was that of Eobert Semple on December 10, 1016, but the words charged could only have been used for one purpose, and that waa to interfere with recruiting. This brought his utterances within the Eegulations. "None of the points raised are,-in my opinion, valid. The appeals must, theretore, in each case be dismissed, with £3 Us. costs in each case. SIR JOHN DENNISTON'S JUDGMENT. "I agree that these appeals raust fail," eaid Sir John Denniston. "It seeme to me futile to contend that the power of the General Assembly of the Dominion to mako laws for the peace, order, and good government of New Zealand is limited to matters ftnd things done by its inhabitants within the Dominion, and precludes it from legislating with a view to use the resources of tho Dominion, whet Tier in men, materials, or money, beyond its territorial limits. The peace of the Dominion is part of the Pax Brittanica—its safety is involved in and depends on the safety of the Empire. That was, in fact, hardly challenged by counsel for the appellants He relied mainly on the fact that the right to send men to serve beyond the territorial limits was confined to voluntary service; and that the Dominion authorities had no power to control members of an Expeditionary Force beyond the limits of the Dominion. No authority was cited .for the first proposition, which is inconsistent with the inherent right when necessary to use all means available for protection. An offensive war is often really defensive. It would be poor policy for every member of a scattered Empire to wait until it was individually attacked. The second ground depended ou the claim that the powers given by Section 177 (as now amended) of the Army Act, 1881 (Imperial}, were, coniined to volunteers, a claim which disappeared when it was pointed out that service in the 1 .. Militia was compulsory "On the other technical objections to the validity of the Act and the Eegulations I do not desire to add anything to the opinions and reasons of the other members of the Court. "On the broader view—which may be said to be one partly of law and partly of fact—it is to me abundantly clear that the speeches of ■each and every of . the . appellants bring them respectively within the Act. More than one of them avows his intention to controvert the regulations—and I doubt if any of them would have personally'disavowed'either the fact or the intention. The Legislature of the Dominion, by its elected representatives, has by an overwhelming majority, decided on' the necessity for compulsory service. To attack that Act, and to encourage discontent with it and disobedience to it, while at the same tune discouraging voluntary recruiting, are undoubtedly offences within the terms of the Regulations issued under the War Regulations Act, 1914. The- utterances, tho subject of the various complaints, vary in violence. One really threatens violence and civil war, another calls on the meeting in -terras to resurrect some of the old characteristics of the lied Federation. . ■ "

"Wo are'engaged, in common -with the greater part of the civilised world, in the most-gigantic war. the world', .lias ever'known, in a life and death struggle for our national existence.' In older days at moments of supreme necessity, the Romans,* a people who reverenced law, banded over control.to a Dictator.* At,a: last extremity, recourse is had to martial law—which is really the negation of law: Short of these, and to prevent recourse to these, there is the recourse to special war legislation—which may involve the inversion of the ordinary Tights of citizenship. Under these, in Britain, powers hitherto undreamt of have been bestowed upon and exercised by tho Executive, and cheerfully accepted and obeyed. The administration there and here has become n machine devoted to the task of meeting a deadly national peril. Those of us who cannot see ttieir way to assisting its working can at least refrain, from applying sabotage to the machinery.

MR. JUSTICE COOPER'S JUDGMENT.

in my opinion, also," • said Mr. Justice Cooper,."each of these appeals must bo dismissed. Mr. Hutchison, counsel for the appellants, has contended, that those provisions of the Military Service Act, 1916, which provide for the service beyond the eeas of men conipulsorily enrolled 'in the Expeditionary Forces of New Zealand are ultra vires of the General Assembly of New Zealand. The Constitution Act (16 and 17 Vic. G. 72) defines the power of legislation possessed by the General Assembly ae a power to make laws for the peace; good order, and Kovcrnmont of "New Zealand, provided that no such laws be repugnant to Hie lair of England. Our Military Service Act cannot be said to be repugnant, to tho law of England. The General Assembly of Neiy Zealand was, in- passing the Military Service 'Act, following, substantially the example already set by the Imperial Parliament. The only question .on this branch of the case ie, therefore; whether the Military Service Act passed by the New Zealand Legislature. >as within the power of the General Assembly 'to make laws for the!pence, order, and good government of "New Zealand.' "In my opinion- it was. There is involved in the present conflict the peace, order, and .good government of every part of the Enipin. It cannot be said that the Legislature of New Zealand has not .the fullest power to provide by statute'for the defence of Zealand, and'there is my opinion, any substance in the Contention that this power is confined to the territorial limits of ths Dominion. In my opinion, the War Eegulations Acts, the validity of which was also contested by Mr.-Hut-chison, were, for the "same reasons, witHin the'power of the Legislature to enact. Four other points of law were submitted by Mr. Hutchison. The fiTst, which applies to the .convictions of each of the appellants, is that under': Section 122 of the Justices of the Peace.-Act,-1908, each of the appellants was entitled to claim to be tried by a. jury,!as he was liable upon conviction to! imprisonment for. a term exceeding-three months. Section - i of the War Eeprulations Act, 1911, as amended by Section 12 of the Amendment Act, 1915 (No.'2), isthat'any person committing an offence against a regulation made under the Act shall be liable on summary conviction before a Magistrate to imprisonment for a term' not excceding'twelw months. Sub-section (c) of Section 6 is, 'The prosecution ehall take plnce by way of summary proceedings and not by way of indictment, notwithstanding any other Act to the contrary.' The meaning and effect of this provision is quite olear. It was intended to prevent, and has prevented, the application of Section 122 of the Justices of the Peace Act to prosecutions instituted under Section i of the War Eegulations Act, 1914. ■

"The second point is that the regulations under which the appellants were severely prosecuted irete beyond the power of the Governor-in-Council to make. The power to make regulations is contained in Section 3 of the Act of 1914: 'The Governor-in-Council may ujake 6uch regulations as he thinks necessary for the prohibition of any Acts which iro his opinion "are injurious to the public safety, the defence of New, Zealand, or the effective conduct of the niTlitary or naval operations of His Majesty during the present war.' ' "Tiro of the informations on which Sempl'e has been convicted are fer a breach of Regulation No. 3 of the Re?u-~ lations of September 20, 1915. In my opinion, Regulation No. 3 was within the power of the Governor-in-Council to make. The third information against Somplo, and eaoh o£ the informations .ißainet the other appellants, allege a breach of Regulation No. 1 of the Regulations of December i, 1916: 'No p«reon shall publish, or cause or permit to be published, or do any net with intent to pulbilieh, or to cause or permit to be published, any seditious utterance.' This regulation docs not purport to apply to any act done outside New Zealand by persons not within New Zealand, nor does Regulation No: 3 of the September 1915 Regulations. ■ ■ ■

"The" informations against each appellant are all in reference to acts done in New Zealand. In my opinion, each of the two Regulations attacked must he •coiwlru«l as referring to acts done or committed by some person within New Zealand, and were within the power delegated under the War Regulations Act to the Gover-nor-ii-Gonnoil. One branoh, of -Mj. HntoliisoA'e argnmeat; on tiiie point oJ law

was that, as seditious offences had d> ready been provided for in., the Crime* Act, any regulation which attempted to create a new offence, or to affect the interpretation of' a seditious intention as defined in the Crinies Act was bad. The answer to this is Section 5 of the War Eegulations Act, 1914: 'No regulation under this Act shall be deemed invalid because it deals with any matter already provided for in any Act in that behalf, or because of any repugnancy to any euch Act.'

third- point of law is the contention that the convictions of.all the- : appellants except Gemple are bad in. form and substance as including more* than one offence. • Here the offence :isthe publishing of a 'seditious utterance.'' In. each case the 'utterance , was .thewhole speech, and the statement in each information that the 'utterance' of each particular appellant was seditions because it had a seditious tendency, as it. had a 'tendency', or intention' within the meaning of the sub-paragraphe of the interpretation Clause i of the Herniations . was not an allegation of, several offences. It was merely alleginj in* terpret'ative matter of the one offenca charged, namely, the publication of a. 'seditious utterance.' ' :': "The fourth And last contention of Mr,Hutchison was tijat in no one of the speeches was there flny matter of a 'seditious tendency.' I have carefully, read and considered each speech, and in mr, opinion, in each,there was matter npon which the Magistrate hearing the particular ease was entitled to convict/' MR. JUSTICE CHAPMAN'S JUDGMENT. , "I agree with the result arrived at ins the judgments read by the other members of the Court, and substantially for l the same reasons," said Mr. ' Justice Chapman. "I desire only to add a few? observations. In the first place I wish to say that though Mr. Hutchison has raised and,argued a number of questions and has shown commendable diligence iu. the interests of his clients, there is not,, in my mind, the slightest jooni for any: genuine doubt as to any of these fltiestiou.s. ; .... "It has very seldom happened in tha history of the Empire that a colonial' Act of Parliament has been found far be beyond the authority of the Legisla* ture. The £ole question in New.Zealand ira whether a statute is or is not one which may properly be passed for the peace, order, and good government of ,the Dominion. A Dominion is empowered by its constitution to defend itself, and forthat purpose to pass Hie necessary legislation. It would be absurd to suggest that this must be limited'to maintaining a force within its own borders.when as a matter of common knowledge'ifc must be evident that it is essential m many cases that an enemy should be attacked eleewhero if the defence is.tris ,be effective. A necesseffy power in connection with the defence of tho Dominion is a power to take p'urt .in tho dofence of the Empire as a v;hole, and that may and. at present d'.W-s involve, sending Expeditionary Forces {o other parts of the Empire and to foreign conn--tries. Any argument to tne contrary involves the suggestion that this aMmtrr could not maintain discipline in a ESaval, expedition which Parliament authorised! the Executive to send to attack. eowe naval base in the Pacific, which was a. growing menace to New Zealand.' Suck a contention would, further involve the proposition that the people of a' Dominion or colony with land frontiers ' "of which there aro three in America and as many in Africa would have to watch the> growth of an enemy force dose to ■ Us> border while it might for v;ant of logat sanction prove powerless to attack it.' Such propositions seem to me to carry their own refutation when plainly stated,.

. "I have made these observations quite irrespective of the operation of Section:. 177 (as now amended) of the Aimy Act, 18S1 (Imperial), v;hich in unmistakaßle. language confers on colonies and consequently on this Dominion the power topass tho vepy legislation which the- appellants have attacked.

"With respect to the objection tha£ th? Regulations purport tp: create a new offence, I 'can. only say that almost every by-law has that effect. - HeTe, however., that does not accurately describe the operation of the Regulations. .They introduce a more speedy mode of trial! with mitigated consequences of offences: already*,recognised by law eyeii if they to some extent re-define them. ' . *

"Fnrthpr, I ajree that the objection that the information includes more uoiii one offence is fallacions.

"As to the seditious matter in . the several (speeches I can draw no real distinction, i Rome of tlie spepcTies are more? violent-tiinn others, but-nil aw sncii that it is .within the authority of a Magistrate'judicially to pronounce that they are seditious, while it is not within the authority of this Court to say that lip is wrong.' .To find the Magistrate to lji» wron? we should have to say that he lios: found a speech to' lie seditions in which'to se<liHoii6 tendency whatever appra-re. Tt would' be .impossible for this Court' hearing an anpeal on a question of law to say that of. any of these epeeches.'