CURB ON CONTROLLERS ADVOCATED

Dominion, Volume 37, Issue 233, 29 June 1944, Page 6

CURB ON CONTROLLERS ADVOCATED

Rights Of Individual POWER SAID TO BE LEAVING PEOPLE

“The rights of the individual canuot be protected if the current Government tendency in commercial ami industrial matters of assembling all the sovereign powers iu one set of hands is continued, ’ said Dr. 0. C. Mazeugarb in an address to the Institute of Public Administration in Wellington yesterday, entitled “Uncontrolled Control.” ‘‘The passion which the executive has been displaying for the gazettiug of new laws by regulations must be quelled. The Legislature should restore to itself the sole right to enact all substantive legislation and not submit any longer to laws being passed under the guise of ‘regulations. ” Dr. Mazeugarb assured his audience that there was nothing personal or of a party political nature in his remarks. The same tendencies were observable in Great Britain, Australia, and America. The' effective powers of government were speedily passing out of the bands of the people—-out of the hands of Parliament, the Judiciary, and the regular..civil servant, and into the hands of the individual Ministers and officials whose identity or whose responsibility it was sometimes difficult to establish. Frequently of late reference had been made to tbc multiplicity . of regulation! 3 and Orders-in-Council which were gazetted at the instance of Ministers aud otficials. The excuse currently made by those responsible was that the new restrictions were being imposed for war purposes only, and would be, removed as soon as possible. The war undoubtedly was the exciting cause of many regulations which curtailed the liberty of the subject, but in other cases the war was merely the excuse for their existence. People were prepared .to submit to the imposition of controls in wartime simpiy because the country was at war, whereas they would not accept them without bitter opposition in times of peace. But once controls were imposed, it was difficult to remove them. The coming of peace might give relief from some ot them, but further controls would be established under the cover of “rehabilitation" unless the public could be made to see what was the root cause of this new method of government and how it was leading away from democracy to a bureaucratic autocracy. “It was no use simply railing against ‘regulations’ as if they in themselves were the cause of distress. It was impracticable to govern without them. The real trouble was that those who had been framing them now-a-days paid scant heed to the accepted conventions of the Constitution and rode rough-shod over the rights of the individual. Therefore, people must recognize the necessity of regulations and see what steps could be taken to limit their scope aud restrict them to their proper sphere. . . “No system of public administration could be considered as satisfactory if the only remedy was a General Election to change the personnel of the executive. There should be within the system itself an adequate control of those who did the Controlling. Just as in every good system of accountancy there was an internal check, so in a system of govern- • ment ‘there should be an internal cheek on the exercise of the powers of those administering the affairs of State. Up till the time that administrative law broke through the conventions and usages of the Constitution, there always was that check. No controller could do what he liked to implement his own plans or the plans of those who directed his actions. If the Government had some plan for control by the State, it introduced a Bill into Parliament where the full plan was disclosed and properly debated. Examples of this were found in the Post and Telegraph Act, the Railways Act, the Public Trust Office Act, the State Fire Insurance Act and the Broadcasting Act. The regulations passed under taose acts were unobjectionable as they merely gave effect to the purposes of the Statutes. That was quite a different form of control from the bureaucratic control of imports, marketing, supplies, transport, manpower, building, dissemination of news, mining, and dealing in real’ property. These 'latter were the types of control which were specially resented by the public. The resentment arose from the fact that in the modem controls the State was not setting out to perform a service for the people. War Regulations for Peacetime Subjects. “One ean well understand the reasons which led to the passing of the Emergency Regulations Act a few days after the outbreak of war,” said Dr. Mazengarb, “But a more far-reaching power was entrusted to the Executive in 1940 when it was given power by Order-in-Council to require‘persons ‘to place, themselves, their services and their property at the disposal’ of the Crown ’for maintaining supplies or services essential to the life of the community.’ Under this power, the Government is now dealing with matters of post-war application. The .Statute continues in force till Septeiner 30 of this year. I suggest that the' time has arrived when that authority should be reviewed and public opinion should be organized against its extension for any further period. It is not necessary for the prosecution of the war. If it is not speedily reconsidered and limited, the controllers will be quite uncontrolled and uncontrollable by the Legislature or by the Courts. We should also not overlook the fact that: it is not. only under the emergency regulation* that the Executive now acts. Control of transport, import control, and State marketing (with their elaborate sets of forms and licenses) were iu operation before the war. True, these pre-war powers were delegated by Parliament with its eyes wide open to the probable consequences of doing so. But the Executive has been using and is using those powers to an alarming extent.?

Such regulations as the country must have should not be drafted in departmental offices, he said. Departmental draftsmen could not be expected to know law and their knowledge did not extend far beyond the operations of their particuular departments. The dominant idea in their minds was to frame some provision of law which they thought would help their purposes, and they seized legislative power, executive power, judical power, or whatever other power might be of assistance.

“The executive should be shorn of the judicial powers which it has at various times assumed to itself as the final appelate authority from the controller or some other tribunal which it appoints,” said Dr. Mazengarb. “It can readily be admitted that for the administration of the various statutes passed by Parliament, domestic tribunals are necessary to hear and determine disputes which are bound to arise. Possessing as they do special knowledge of an industry of service, these domestic tribunals are better fitted than the courts of law to hear disputes; But there is a distinct tendency in New Zealand to depart from the sound practice of allowing a right of appeal to the courts or to a tribunal which is entirely independent of the executive. AU too often where a right of appeal is given, that appeal is to another lay tribunal or the Minister hijnself.” Another highly objectionable feature of this controlling process was thqt the law was not easily knowable. One had only to look at the amendments published in each week’s Gazette to be able to liken administrative law in its modern robes to a quick-change artist at a vaudeville show. “The facility with which new laws are made under the administrative process prompts the suggestion that a director of public prosecutions should be appointed,” he said. “His duty would be to review all decisions made by controllers to prosecute for breaches of regulations. The natural tendency of a controller is to place an interpretation on the regulations most favourable to him and the plans in bis mind. Some of the controllers are getting into the habit of ordering prosecutions and expecting the courts to put the rubber stamp on, as if the courts lire just another department of State ranking pari passu with them. We should be thankful that we have magistrates who are independent and fearless, who have some security of tenure of office and are above the suspicion of Ministerial pressure. “The remedy may lie in the hands of the controller themselves, but if they don’t speedily attend to it, these controls must be abolished or the subject given a general right to appeal to the courts from the arbitrary and capricious interference with their natural rights,”