TIMES PROSECUTED FOR ALLEGED CENSORSHIP VIOLATION

Manawatu Times, Volume 69, Issue 66, 21 March 1944, Page 6

TIMES PROSECUTED FOR ALLEGED CENSORSHIP VIOLATION

All-day Hearing in Magistrate’s Court Decision was reserved by Mr. H. P. Lawry, S.M., in the Palmerston North Magistrate’s Court yesterday alter a hearing occupying nearly live horns of the case in which Robert Hewitt Billens, editor, was charged that he did publish in * ‘ The Times, ’ * a newspaper printed and published for the proprietor, the Manawatu Daily Times Company Limited, a statement or indication that a censor had refused his authority for the printing or publication of certain matter or kind of matter. The charge was preferred under regulation 16 (5B) of the Censorship and Publicity Emergency Regulations 1039. This clause reads: “No person shall print or publish in any periodical publication or in any other printed document any statement or indication that any matter or kind of matter has been required to be submitted to censor ship under these regulations or that a censor has refused his authority for printing or publication of any matter, or kind of matter.’’ The case involved an extensive discussion on tlio censorship powers of the Director of Publicity (Mr. J. T. Paul). Defendant, who pleaded not guilty, was represented by Mr. M. H. Oram, and the prosecution was conducted by Dr. N. A. Foden, of the Crown Law Office. Censor’s Powers in Court Proceedings Mr. Oram at the outset said he wished to raise a preliminary matter. Defendant had received from tho Director of Publicity what purported to bo a directive memorandum dated March 16. This letter stated: “In view of the proceedings in the Magistrate's Court, Palmerston North, in connection with a prosecution for an illegal censorship breach of the Censorship and Publicity Emergency Regulations, I wish to draw your attention to clause 5 of regulation 16." After quot- i ing tho regulation the letter added: “In order that there should bo no misunderstanding I feel I should remind you that Teports of court proceedings equally with statements of any other kind are governed by this clause" In other words, said Mr. Oram, Mr. Paul was endeavouring to prevent the publication of reports of these proceedings. The Director of Publicity was really the informant in this case. The directive letter did not suggest that any matter detrimental to the public safety should not be published. Had there been any question of public safety no objection could have been taken, but the Director of Publicity was endeavouring to protect himself as informant under this particular section. He was as Director of Publicity taking the right to say what should be published about himself as informant in this case. The Magistrate, after inspecting Mr. Paul’s letter, said: “It is marked confidential. Why? It is an official letter. ’ Dr. Foden said the letter was a complete surprise to- him, but he contended Mr. Paul was not the informant. Mr. Lawry: I don't know whether I should hold the matter up and adjourn the proceedings to go into it. Is he going to attempt to muzzle the press m the matter of Court proceedings? Dr. Foden said the letter did not appear to him to be a direction. 'lt was simply a letter to defendant referring to the Court proceedings. Mr. Lawry: Is it directing that this case should’ * not bo reported? He. has no right to say that. Mr. Oram: It is an implied threat. It might be necessary for me to argue and for the Court to find that the Director of Publicity has exceeded his powers. It would be a terrible thing if that were found to be so. Mr. Oram added that he understood there was no equivalent of regulation 16 in any other British dominion. He suggested that public safety could well by any direction from the Bench during the hearing, if necessary. Where is the Censor? Mr. Lawry; Is Mr. Paul here? Dr. Foden; No. It was not considered necessary. He was subpoenaed but only by the prosocution. Mr. ‘Lawry: That doesn't matter. What right has the prosecution or anyone else to tell Mr. Paul he need not appear.’ The only authority which can release him from his obligation lo attend is the Court itself. Dr. Foden said he would like to dissociate himself and the .SolicitorGeneral from any intention to show discourtesy to the Court. Mr. Lawry: It is not a question of discourtesy but a question of anyone usurping the functions of the court. Dr. Foden said the Solicitor-General and himself must accept responsibility for that particular development. Had Mr. Paul answered the subpoena it would not have been intended to call him. Mr. Lawry: But the Court might have wanted to call him- and require him to explain that letter to one of the parties. Mr. Oram said he had not wanted to call Mr. Paul, but he did suggest that it was quite wrong to attempt to muzzle the press on these proceedings. Mr. Lawry said he thought it was justifiable to assume that the proceedings were instigated at the instance of the writer of the letter. Dr. Foden concurred. Validity of Regulations The Magistrate then raised the question as to whether the regulations which were framed under the Public Safety Conservation Act, 1932, were still in force. There appeared to bo no record of confirmation of the regulations by resolution of both Houses of Parliament as required under that Act. After lengthy discussion the Court adjourned to enable Dr. Foden to communicate with the Crown Law Office, Wellington, on the question. When the Court resumed in the afternoon Dr. Foden said that the regulations were in fact in force because even assuming that the regulations made under the Public Safety Conservation Act were not presented to both Houses of Parliament for validation by resolution they were nevertheless validated by the Emergency Regulations Act passed on September 14, 1939, within 14 days of the issue of the regulations. The Court agreed on this point and the case proceeded.

Dr. Foden said he would like to clear up one or two references made in the morning 's hearing which might appear unfavourable to Mr. Paul. Firstly, the explanation of the letter was simply that the Director of Publicity was leeting all editors, not merely. defendant, know they could not publish in the guise of a Court report any matter which had been the subject of a previous censorship prohibition. It was simply a warning to that effect. There was no intention that there should be no report of these proceedings. Mr. Lawry: The letter was less explicit that it might have been. Dr. Foden also referred to the Magistrate's remarks regarding the subpoena to Mr. Paul. He said the Director of Publicity’s attention was drawn to tho article, Mr. Paul referred it to the Solicitor-General, who considered an offence had been committed and passed the matter on through the Crown Law Office to the police to institute proceedings. The subpoena was issued without reference to the Crown Law Office. Had that step been taken Mr. Paul would not have been subpoenaed, but the Director oi Publicity had been very willing to appear voluntarily had that been considered necessary. lie had expressed every willingness to do so. Mr. Lawry said the defence might have been relying on Mr. Paul's appearance in answer to the subpoena. As it happened, the defence was not worrying, but he had thought it right to comment on the absence of a person being subpoenaed. Case for Prosecution Dr. Foden, opening his case, referred again to Mr. Oram's point of whether the Director of Publicity was the informant. Mr. Oram: My point is that whoever fired the shot, the Director of Publicity was the man behind the gun. Dr. Foden said Mr. Paul had merely sought advice. There had been a suggestion that Mr. Paul was looking for someone’s scalp. Messrs. Lawry and Oram both disclaimed any suggestion that there be something sinister behind the prosecution. Mr. Oram contended that tho Director of Publicity was hiding behind regulation 16 when he said there must be no indication that ho had anything from publication. If the Director* of Publicity were genuine in his desire to protect the public safety he would confine his directives to matters concerned therewith. Mr. Oram added: “I am going to argue that the Director of Publicity has exceeded his powers. Tho public want to know if ho has exceeded them, in what direction ho has done so. If an emasculated report of tho proceedings goes out to the public it places the whole matter in a wrong light." * The Magistrate: Is it a fact that under the regulation the public are not to know what newspapers aro not to say. It seems strango to me if the papers cannot tell me what they are not allowed to publish. This paragraph goes further than anything wc have had before. Dr. Foden said the regulation was of the kind found desirable on the experience of the last war. Mr. Lawry said it was difficult for the public to know what tho law was. The papers apparently could not tell them. This regulation was not limited to public safety and the war effort. He had heard of a case the other day of a letter being returned by the censor because of some unfavourable remarks about the Government or tne Prime Minister or some other Government functionary. People wanted to know where they stood. Dr. Foden claimed that the difliculties presented by the regulations were inevitable in a country at war. He was not there to justify every instance of the administration of the regulations, j Australia had an almost identical regulation. , “Wide Open as the World’’ ! Mr. Lawry, in further comment on the regulation, said it was as wide 'open as the world. j Dr. Foden contended that criticism of the vagueness of tho regulation did not alter the law under which the present case was brought. The vagueness of emergency legislation was a disability civilians had to put up with. Mr. Lawry said he was not criticising the regulation. His function was to point out what the regulation said j and what it meant, i Dr. Foden said the information arose ! from au editorial published un Decern- ! ber 6. 1943. Two statements in I particular were cited: “On three | occasions recently the gag has been applied," and in the next paragraph, “There is an element of grim humour in tho fact that all three recent cases of suppression concern tho workers." These statements in conjunction with their context were construed as a statement or indication that the censor had refused his authority for the publication of certain matters. The inference from the word gag was irresistible. The writer himself had said he might be breaking the regulations. There was no reflection oil defendant’s patriotism or loyalty as a citizen and no suggestion that anything harmful to the country's war effort had resulted, but the view was taken by the Crown that there had been au offence. It was not correct that the gag had been applied on three recent occasions at the time the editorial was written. There had been only two recent prohibitions. Formal evidence was given by Detective J. G. Long, who said he received a file cn December 23 from the Director of Publicity through the usual channels. lie interviewed defendant who acknowledged writing the article. The Defence ' Mr. Oram, presenting the background of the case, said it concerned a very vital right not only for individuals but for the country's institutions. Freedom of speech was a fundamental right, particularly in British countries and the press always upheld that right not only for individuals in their editorials but for any man to express his views through the correspondence columns. I The press had a due sense of its ! responsibility and its high trust had ’not been abused. If there were a censorship in force the press was only !a buffer between the Government and the public. It was tho only guardian of public liberty. Another aspect was that criticism was the only means of curbing inefficiency. Mr. Oram said defendant wrote his editorial as the last straw as the result of many prohibitions on publication which he considered unjust, unfair and unjustifiable in every way. If there were any ambiguity in the regulation it must be interpreted in accordance with the regulations as a whole and the mischief it designed to prevent. The Public Safety The only basis the Director of Publicity should have for. issuing pru-

tibitive directives was the public safety and the directives should be sonfined to preventing the publication >f anything prejudicial thereto. He should bo concerned with preventing nilitary information reaching the memy rather with the suppression of nforination. If he were to have any 50w6rs more than those necessary to preserve public safety those powers should be clearly defined. The Director )f Publicity could rely on regulation 16 mly if the subjects of his prohibitions iffected public safety. Mr. Oram also contended that the jditorial did not once mention the sensor. It referred only to the Director >f Publicity and the Crown had proluced nothing to show that the Director >f Publicity was a censor or that he lad any connection with a censor. Mr. Lawry said the censor and the Director of Publicity were paid separate salaries. It might bo assumed from that that they were separate people. Mr. Oram contended that nothing in ;he regulations defined the powers of the Director of Publicity as a censor is was done with the postal and tele graphic censors. Mr. Oram said nothing in the jditorial clearly indicated any partiouar matter which had been banned :rom publication. He claimed that the jditorial in no way indicated any natter which had been refused publicaion by tho censor. From the perusal )£ it could any member of the public •ay what subject had been banned? Mr. Lawry: The workers airing their Grievances through the press? Mr. Oram: Not even that. Mr. Orain added that the article did lot in any case specify any particular jroup of workers, whether workers in .he dairy industry, domestic workers >r members of the police force. Mr. Oram read the three directives •eferred to. He claimed that one of ;heni was only a request by tho Director of Publicity, not a refusal of luthority to print. Another was ultra rires of the Director of Publicity. It lid not affect the public safety. It lealt with the taking of employment jy members of the polico force and ;heir wives. The Magistrate raised the question >f who determined public safety as lefined by the regulations. For instance, he said if the Director of Publicity issued a ban on the publica :ion of a discussion of eggs for breakfast that ban could not have force. Mr. Oram declared that the Director }f Publicity or the people behind him svere using the war regulations to enforce domestic regulations concerning tho police and to prevent that information reaching the public. Mr. 'Lawry said for such a prohibition to bo applicable it would require the public safety to bo regarded ns embracing the police as well as military activities. Summarising, Mr. Oram submitted, firstly, that the article did not indicate anything within the meaning of the regulation; secondly, that the matter must be considered clear and specific before a breach of the regulations could be proved; thirdly, that the Crown had failed to show that the Director of Publicity had any connection with the censor. Difference in Directives Defendant, giving evidence, said he had received during the war “mountains" of instructions from the Director of Publicity. He considered most of them went further than they should. The three referred to in the case were the culmination of a long series. Of the many instructions received none was so generalised as the last of these three. It came at a time when the threat of a railway striko was exercising the mind of the public above all other topics. He knew, and he thought other editors knew, that the restrictions meant that no information concerning the progressive threats or incitements to strike should be published. This coming a few days after another prohibition directed against the police forced him to tako the risk of breaking the emergency regulation. Defendant said he believed one of the difficulties of the Director of Publicity was that he met with considerable objection not oniv from newspapers but from those who were the subjects of his directives—his victims who were not always newspaper editors. When a directive concerned a group who were helpless because ot their peculiar position in relation to the public, as were the police, it was easy to make it a strong direct ban, but when tho directive had to deal with a strong militant union such as the railway men then the wording of the ban required a good deal of thought. The only inference he could tako from the the difference in the wording of these two directives was that Mr. Paul anticipated greater antagonism from tho rail way men as a result of tl\e suppression of their views in the press. Under cross-examination defendant said he was almost at boiling point at the time the article was written. He particularly objected to being made a tool for a measure of oppression against the police force who were denied the right of taking their caso to the public and who were less able to defend themselves than any other body of workers. After Dr. Foden had made submissions that Mr. Paul was clearly a censor in the meaning of the regulation, Mr. Lawry said that in view of the important issues raised he would reserve his decision.