The Dominion. SATURDAY, JANUARY 13, 1912. BUREAUCRATIC POWER.

Dominion, Volume 5, Issue 1336, 13 January 1912, Page 4

The Dominion. SATURDAY, JANUARY 13, 1912. BUREAUCRATIC POWER.

a We have at different times drawn attention to the tendency of Government Departments to assume autocratic powers and place themselves above the control of the law. It is a tendency which has received every, encouragement from the Ward Government, but unfortunately it is not confined to this country. It is one of those evil modern growths of tyranny which a large scction of the public does not yet recognise in their true colours, but which can only be checked by that vigilance which is the price of liberty. This aspect of affairs is well illustrated by tho English law case of Dyson v. the Attorney-General, which in its earlier stages we commented upon some timo ago. The case has since been concluded, and it affords' from first to last an instructive exposure of tho progressive denial of the right of the subject to appeal to the Courts for protection against the improper actions of Departments of State. Me. Dyson, a small Yorkshire landowner, brought an action to test the validity of the notorious "Form IV" which was issued by the Inland Revenue Department under the Finance Act, 1910. He claimed, inter alia, that Form IV was a demand for information which he was unable to supply and which the Act did not authorise the Department to ask for. The case was afterwards declared by one of the Judges to be "of.the greatest importance to hundreds of thousands of his Majesty's subjects. Tho Executive, however, tried to prevent it being heard, and the Attorney-General took out a summons to strike out the statement of claim as disclosing no reasonable cause of action. He succeeded in Chambers, but Dyson appealed. The representatives of the Department were compelled- to abandon their original contention, but they, argued on technical grounds that such an action could not lie against the Attorney-General. Upon this phase of the case, Loud Justice Farwell mado a memorable comment: The argument on behalf of the Attor-ney-General (ho said) admitted for this purpose tho illegality of the inquiries, but claimed for a Government Department a superiority to the liuv which was deniod b,v tlm Court to tho King* himself in Sluart times. The Court of Appeal unanimously upheld the appeal, and Dyson's original claim accordingly came before Mr. Justice Horridc.e, who declared Form IV to be an illegal and worthless'document. ■ Tho Executive, Btill ( unsatisfied, and having tho b P.uWQ Bftoa to irsre; JBJKBI pit

expenses, brought tho case back again to the Court of Appeal. The result was a ruling that Mb. Justice Horridge was right, and n',r Department was rebuked fro- ■ t S£ t S J,i,,cto| ' rev wK"»

wmilai , cases lS gi b , JllL EnNI , ST in t' barrister and author, t -jp December Nineteenth C'entun/. j-n the Swansea school case, the local education authority insisted upon paying lower salaries to the teachers of a church school than to those of the "provided" schools. The Board of Education, contrary to the findin K£ of its own Commissioner, upheld the. local authority. The managers oi the school (who had been keeping up its efficiency by paving the teachers out of their own pockets or by public subscriptions) applied to tho Court of King's Bench. That Court, and in turn tho Court of Appeal and the House of Lords decided that the Board had acted illegally in what appears to have been an attempt to crush a school tor sectarian reasons. The contention of the Board was that the Education Act gave it power to decide questions between a local authority and the managers of a school, and that there could be no appeal from its decisions. The Court of Appeal allowed that the Board could decide questions of fact, but pointed out that it was wrong in claiming, as it practically did, that its interpretation of the law could not be reviewed by a competent Court. In another case the Inland Bcvenue Department was rebuked by the High Court and the Court of Appeal for its. hifjh-handcd refusal to produce the evidenco on which it had based its assessment of the compensation to be paid to the owners of a closed Sublic-house. In yet another case the oard of Charity Commissioners insisted upon setting aside the instructions of a testator, and applying part of his bequest to an institution not mentioned in tho will. Lord Justice Farwell described this payment as "clearly unjustifiable," and said that, had it been made by trustees, they would have been personally liable to replace it. Unfor tunatelv, he could not find that the Legislature had given the Court any jurisdiction to sot the matter right. Tho English Courts certainly seem to hive done their duty in protecting the public against the encroachments- of Executive Departments. But, Mr. Williams very significantly remarks:'

Gratitude to tho Courts for the stand, which I hoy have made must neither blind' one to the danger that tho like independence and judicial acumen may not always bo manifested, nor make lis forget that the power of tho Courts has already been dangerously limited by statute.

_ These two sources of danger to ; the liberties of tho subject require to lie very carefully watched. Of the second—legislative restriction of the powers of the Courts to correct'the errors of the Executive—Mr. Williams.gives a scries of examples. To the other he makes no further allusion, and we may take it that while the judiciary of England has Lord Loreburn at its head, there is no fear that anything will be don'e to sap its independence. We wish New Zealand had been so fortunate, but the fact is that the Ward Government has been anything but carcful of the independence of the Bench. Wc need not say; much about, the payments, to the Chief Justice for acting on the Native Lands Commission and the Statutes Consolidation Commission.' The electors last month made their sentiments on tfyat matter quite apparent. What is not so well known is that the Ward Government has by means of little bits of unnoticed legislation arranged that in some instances the subiect shall have no legal remedy against the errors of a Department, and in others the only recourse is to the Magistrate's Court. Thus tho Death Duties Act, 1909, makes the Commissioner of Taxes sole judge of the value of the property, without right of appeal, and the Government sought to give the same official the power of final decision in disputes under tho Land and Income Assessment Act, _ 1907. In each instance tho Opposition protested on behalf oi the citizens against this deprivation of right. The Government long refused to amend the Crown Suits Act so as to give accidentally injured persons a legal remedy against a Government Department, anieven the amending Act of 1910 docs not place the Departments on an equal footing with private individuals. There is also the Customs Department,, in which the Minister has wide powers in fixing what shall be paid, and the importer has but a strictly limited right of appeal to the Supreme Court.

The enlargement of the jurisdiction of the stipendiary magistrates in cases affecting the Executive Departments is a clear tendency of the legislation of the Ward Government. The magistrates' are chairmen of Railway Appeal Boards and of AsCourts. They have jurisdiction in _ connection with old age pensions, income tax, breaches of industrial awards, marine disasters, and mining matters. In many of these cases Government Departments are concerned, and the complete independence of the Bench is therefore especially requisite. Yet the salaries of the magistrates can be increased or reduced at the will of the Government of the day. And to make matters worse the facilities for appeal from the Magistrate's Court to the Supreme Court have been diminished. If the stipendiary magistrates arc placed too much in the position of Departmental officers to effectually safeguard tho public against Departmental aggression, the same is true to an even greater extent of the Judges of the Native Land Court. Their salaries are placed, like those of the magistrates, year by year, upon the Estimates. And we lately had occasion to notice that/the Government thinks it "convenient" that a Native Land Court Judge should also hold another appointment as a Departmental officer. It is no more than fair to admit that this evil growth of bureaucratic power is not altogether a matter of policy. Much of it is due simply to laziness and incompetence. _ The London Spectator, commenting on the Dyson case, remarked : "If there is one thing certain in this matter it is that Departmental aggression is the inevitable corollary of the incompetence of the Departmental chief." It is so difficult to provide for all eventualities by Act of Parliament, and so fatally easy to slip in a clause empowering the Govcrnor-in-Council to make regulations or issue an Order-in-C'ouneil. When New Zealand has a Reform Government—one that will take trouble to preserve the liberties of the subject—it will find a good deal of work to its hands in removing the conscquences of what Burke called "the degenerate fondness for trickery, short-cuts, and little fallacious facilities, that has in so many parte of tho world craatod Governmnnta "Kith arbitrary jjosonv"