INDEPENDENCE OF JUDICIARY

Press, Volume LXXXIV, Issue 25581, 24 August 1948, Page 4

INDEPENDENCE OF JUDICIARY

—• — Mountpark Procedure Criticised ADDRESS BY SIR MICHAEL MYJSRS From Our Own Reporter WELLINGTON, August 23. Criticism of procedure in setting up the recent tribunal in the Mountpark dispute was expressed by a former Chief Justice (Sir Michael Myers) in an address to the Wadestown and Highland Park Men’s Society. Sir, Michael Myers protested against the encroachments which had been made by statute and regulations on the jurisdiction of the Courts and particularly of the Supreme Court. Sir Michael Myers said the status, dignity, responsibility, and duties of the judicial office must be emphasised. It was a trite saying that the administration of justice must not only be pure but must also seem pure, because without the appearance the public might not believe in the reality. “So with the independence of the judiciary, not only must it be completely independent of the executive Government and all other bodies and authorities, but it must have the appearance of independence," he said. “That independence is the one safeguard of the rights and liberties of the subject and its appearance, as well as its reality, should be protected at It was the duty of a judge at times to perform extra-judicial work such as membership of Royal Commissions and commissions of inquiry on matters of public importance, subject to this qualification: that they were not of such a nature as to be incompatible with his position as a judge and with the traditions attaching to his high and dignified office, he said.

Constitutional Procedure On one question of asking a fudge to perform extra-judicial inquiries it was the duty of the Attorney-General to advise the Government, but, if he were not cognisant of the constitutional principle or, being aware of it, were unaole to hdld the pass against his lay colleagues, then it was left to the judges themselves to hold it and in doing so they might be sure of the unqualified support of the law societies, the press, and the public. Sir Michael Myers said that the recent incident of the Mountpark presented constitutional implications and involved constitutional principles of very great importance, fundamental principles, indeed, of general concern. To begin with, a Minister erf the Crown, according to his own statements published in the press, made an offer to the unions to set up a committee under the Strikes and Lockouts Emergency Regulations with a judge as chairman, not an Arbitration Court judge (of whom with deputies there were five in all), and this was an industrial matter, but a judge of the Supreme Court.

After the union’s acceptance of the offer an approach was made (according to the Minister’s published statement) to the employers concerned, who agreed; * ‘following which the AttorneyGeneral was requested to approach the Chief Justice with a view to a Supreme Court judge being made available.” That was all contrary to constitutional principle. The judges should have been approached first before any offer was made to ascertain whether the inquiry was one which it was considered proper for a judge to undertake. Judge’s Right to Refuse A judge had the undoubted right to refuse to act even on a commission of inquiry, if he thought that the subject matter was such as that he should not participate in it. Sir Michael Myers said that there were three instances within his own knowledge where there had been such a refusal of requests made by different Governments because the subject matter of the proposed inquiry was of a controversial political nature and he knew of a similar refusal in Victoria some years ago. In the present case the Minister made a statement which was calculated to cause embarrassment and it was calculated to lead the public to the belief, an entirely erroneous belief, that the Government had only to ask and a judge would have to obey. It was all contrary to constitutional principle and wrong. A refusal would be a severe rebuff to the Government, an acceptance liable to give rise to adverse comment, or even possibly misconstruction. The tribunal was not even a Royal commission or commission of inquiry, but a mere committee of five men appointed under the hand of the Minister to decide matters which, it might be suggested, had acquired a strong lioliticai flavour and if (so the reguations provided) any member, which expression included the chairman, failed without reasonable excuse (the burden of proving which should be on him) to attend any meeting, he committed an offence against the regulations. That was a position which would appear to be clearly contrary to constitutional principle for any of His Majesty’s judges to be placed in. Simple Method Available There was a simple and constitutional method which could and should have been adopted. What the union desired was, in substance, that their members should be able to bring an action for wages and/or damages in the Supreme Court, presumably against both the shipping company and the Waterfront Control Commission. It had apparently been advised that that was barred by reason of the finality of a decision of the Waterfront Control Commission.’ Whether that was a right or a wrong view was immaterial. If there were any doubt about the matter and it was just that the men should be able to sue for wages or damages, Parliament was in session and a short act could have been passed giving the men the right to bring their actions in the Supreme Court and enacting that the decision of the Waterfront Control Commission should not be pleaded in bar or be available as a defence to the action. That was the proper and constitutional course to. take.

Constitutional principles were involved, and the matter was one for Parliament itself, not for a single Minister, or even the Executive. Had that been done and an act passed, a judge would, of course, have been bound to act upon it, but Parliament would have itself taken the responsibility and the judges would have been immune from any possibility of adverse commerft. The- case would then have come before the Court as an ordinary action under the ordinary rules of the Court in the ordinary course of the business of the Court. There was another feature of the matter which called for notice It would seem, that there was always the possibility with a committee of the kind that had been set up that a judge might have to give a decision, the effect of which might be that some of the very men with whom he had been sitting as a colleague might have been themselves guilty of offences against the law and liable to prosecution accordingly. It would hardly be said that a judge’s membership of a committee with such possibilities was in accordance with sound constitutional principle. “All these possible embarrassments are created by departure from constitutional principle and would be avoided by adherence to principle and practice and the adoption of proper constitutional methods,” said Sir Michael Myers. Position of Chairman of Commission There was still another objectionable feature, that of a judge (certainly not a judge of the Supreme Court' but a person • having what was called the status of a Supreme Court judge) having to give evidence and submit to cross-examination to justify bis actions. To say that he was giving evidence as chairman of the Waterfront Control Commission and not as a judge was not a valid answer to the objection that it was contrary to both public policy and constitutional principle that a person holding high judicial office with the status of a judge of the Supreme Court should be placed in a position involving such an indignity. Sir Michael Myers said he ventured to hope that the happenings in the Mountpark case would not 4be regarded as precedents to be followed.