PROTECTION.

Auckland Star, Volume LXVIII, Issue 200, 24 August 1937, Page 8

PROTECTION.

POSITION OF S.M.'S LIMITS OF THE LAW. OPINIONS IN AUCKLAND. JUDGE EXPRESSES SUPPORT. "It is a foundation principle—almost a constitutional principle—of British justice that a citizen should be protected against action in excess of the powers of justices and magistrates," said a prominent member of the legal profession in Auckland, in commenting this morning on the view expressed by Mr. J. H. Luxford, S.M., of Wellington, in an address, that magistrates and justices should be given more protection against personal liability. Mr. Luxford's statement was: "The justices and the stipendiary magistrates are entitled to demand, and should have the support of public opinion in their demands, that the Legislature give them protection against personal liability unless it is alleged and proved that an act in excess of their powere is done maliciously without reasonable cause."

Several members of the Auckland Bar were invited to express their opinions as to the wisdom of extending the protection at present given to justices and magistrates, and the view most generally taken was that cases where personal liability was incurred because of acts in excess of judicial powers were so rare that it was doubtful whether the law should be changed to remove liability in such cases. Statutory Protection. Reference was made by one lawyer to Halsbury's "Laws of England," where, under the title of "Magistrates," there appears the following: "Protection is accorded by statute to justices (which includes magistrates) in respect of acts done in the execution of their duty as such, but this protection does not extend to cases where they have acted either maliciously and without reasonable and probable cause, or without or in excess of their jurisdiction, and in such cases they are liable for an action for damages at the suit of the party aggrieved." Thus, it waa pointed out, there were two distinct groups of cases,, one being that in which it was alleged that actions of justices or magistrates were done maliciously or-without reasonable.cause, and the other in which they were in excess of their jurisdiction.It was stated that the same principles as applied in England applied fairly generally in all parts of the Empire, and that the laws of New Zealand were modelled on those of England. "These provisions of the law are a salutary protection of" the rights of the subject,,", said a barrister. "They tend to make magistrates and justices very careful." ? '<" ■ ■ '.

Judge Supports Mr. Luxford. Support of Mr. Luxford's contention that protection should be given to magistratee was expressed by Mr. Justice Ostler when interviewed at the Supreme Court this morning. "A most important function of the State is the impartial administration of justice," said his Honor. "Human I experience has shown that the safest and best way of ensuring pure administration of justice ia to be found in the ' absolute independence of those engaged in its administration. - After the unfortunate experience of subservient judges /luring the period of the Stuarts in 'England that was finally provided, so • as judges were concerned, in the ™t of Settlement of 1701. So important was the principle considered that it ha.s been ever siuoe enshrined in every demo J era tic constitution based on the English I model.

"It ie to be found ia the Constitution of the United States of America, in that of all Australian colonics, and also in the Constitution Act of New Zealand."

"In addition to the constitutional position of judges making them independent of the executive, the English law has for a long time provided that judges shall be absolutely immune from civil liability from anything they say or do in the execution of their duty. For Benefit of Public. "Aβ pointed out by Mr. Luxford this rule was devised not for the protection of judge*, but for the benefit of the public. The surest way of providing for purity and independence in the administration of justice is to provide that those engaged in its administration ehould be put in a position of independence and freedom of fear of consequences. Then if men of high character are chosen that is the beet system that human thought can devise. There is no reason to my mind why magistrates should not be put in the same position as judges in being both independent of the executive and immune from the consequences of their acts done without malice and in the execution of their duty." Wide Powers Under Law. The comments of a barrister of long experience were:— "Magistrates possess the same immunity as judges of the Supreme Court so long as they do not exceed their jurisdiction. Within the limits of their jurisdiction their exemption from civil liability is absolute. "The position of justices of the peace or of magistrates acting as justices has never been determined with certainty, but it is provided by statute that they are not liable for acts done in the execution of their duty and within their jurisdiction unless such acts are done maliciously and without reasonable and probable cause. "Wide powers are'given to justices and to magistrates to issue warrants of distress and commitment against the goods and property of subjects in cases within their jurisdiction, and it may be urged that it is not desirable to relieve them of responsibility for their acts if they authorise proceedings against property or person without due authority of law." Attitude of Justices. '"It is only on rare occa*ions that the question of the personal liability of justices arises in the circumstances'mentioned by the magistrate," said Mr. A. J. Stratford, J.P., registrar of the Justices of the Peace Association. He added that two justices sat every Saturday in the Magistrate's Court in Auckland, and that in the country districts they gave coneiderable time to the work of administering the law. Yet instances where they transgressed their powers seldom arose. Still, he thought Mr. Luxford had performed a service, not only to the magistrates but also to the justices, in drawing attention to the need of more protection. "Most assuredly it is a good thing that the question has been taken up," said Mr. Stratford.