SEDITION CASES

Dominion, Volume 10, Issue 3039, 28 March 1917, Page 6

SEDITION CASES

HEARING..OF THE APPEALS

COUNSEL'S ARGUMENT

LEGISLATIVE AUTHORITY

QUESTIONED

The hearing of the of five defendants convicted of sedition was commenced in the Supreme Court yesterday morning. His Honour the Chief Justice presided, ajyl with him Their Honours Sir John Jftennistonand Mr. Justice Cooper and Mr. Justice Chapman were associated. The appellants were: Thomas Brindle, Peter Fraser, Frederick R. Cooke, James Thorn, and Robert Semplo. . The charges preferred against the appellants in the Lower Court, briefly, were as follow: — Brindle and Fraser, -publishing an utterance which was seditious in that it had a tendency to excite disaffection against the Government of New Zealand • and to interfere with the recruiting of His Majesty's Forces and with tho effective conduct of the military preparations of His Majesty; and to discourage the protepution of the present war to a victorious conclusion; and to encourage opposition to the enforcement and administration of the laws in force in New Zealand relative to compulsory military service during that war, and to excite disloyalty in resnect of tha-fc war. Cooke, publishing an utterance which was seditious in that it had a tendency to interfere with the recruiting of His Majesty's Forces and with tho effective conduct of the military preparations of His Majesty; and to discourage tho prosecution of tho war to a victorious conclusion; and to interfere with the proper and cffrcttVe enforcement or administration of the laws in force in New Zealand relative to compulsory military service during tho war; and to encourage lawlessness nnd to excite disloyalty in respect of the * Thorn, publishing an utterance which was seditious in that it had a tendency to excite disaffection against the Government of the United Kingdom and the Government of New Zea land: and to interfere with the recruiting of His Majesty's Forces and with the effective conduct of the military preparations or His Majesty; and to discourage tho prosecution of the war to a victorious conclusion; and to encourage opposition to tho enforcement of administration of tho laws in force for the time beino- in New Zealand relative to compulsory military service during the prosent war; and to excite disloyalty in respect of the war. Scrapie, publishing an utterance which had a seditious tendency, in that it had- a tendency to interfere with the recruiting of His Majesty's. Forces in New Zealand;-expressing a seditious intention, by tho -utterance of certain words (two informations). Mr George Hutchison appeared for the appellants and Mr. J. W. Salmond, K.C., for the respondents. Mr. Hutchison said that- there wore two contentions applying to all the cases, and raising the question of the competency of the General Assemhly to pass the legislation under which the defendants had been convicted. Chief Justice: Do you contend that the judicial branch of Government can over-rule Parliament?— Mr. Hutchison: "No, sir, I don't suggest for a moment that the Court can over-rule Parliament. I am asking the Court to interpret the Acts of Parliament on the subject." , . Counsel, prooeeding. said Ins nrst objection would he: That the T\ar Regulations Act, 1914, in pursuance ot whioh the regulations were made, under several sub-divisions of which the appellants wore convicted, was not within the competency of the General Assemhly in Parliament assembled, to enact in so far as such regulations purported to extend to matters and things beyond New Zealand—the nower of the General Assembly beinc limited - by the Constitution Aet (1852) to the ninkino- of laws for thn neace. order, nnd "ood government qf New ZeMand. He would refer, in passing to the terms of the War Regulations Act. 1914. It was unlike any other Act on the Statute Book both in its scone and in its language It Sealt no doubt with a serious emergency, hut the language was rather ambitions. There was no referpnep in tho setting out of the objects to the 'milder lauo-.ua.ee of +he Constitution Act, which conferred authority for the enactment of legislation tor the "pence, order find gnrid government" of New Zealand. Counsel did Tint doubt tho power of tho Pariinrneut of New Zealand 'to control matters within its bounds . . .-,... Chief Justice: It has jurisdiction over all its citizens, wherever they are. Thnt is what the Court of Appeal has held. ' , L ..-,. Mr. Hutchison: T liopp to distinguish this etise from the one lour Honour has in mind. , Counsel suggested that the terms ot the Act led to the presumption ; that tlie Act was passed rather hurriedly. The Act was amended in 1916. by the Striking out of the words which would limit the period of imprisonment to three months in tho case of a British subject. A most important point in respect to constitutional law was embodied he submitted, in the following further contention: That the Military Service Act, 1916, which is referred to in Regulation No. 1 (1) of December 4, 1916, relative to "compulsory military training or service," in respect of whioh an offence was included in , the informations (followed by tho convictions) against the appellants, was not within the competency of the General Assembly in Parliament assembled, to enact in purporting to control and com pel flie services and conduct of persons beyond New Zealand, such a power not being within tlie authority conferred on the General Assembly by the Constitution Act (1852). Chief Justice: You don't suggest that conscription is new to New Zealand with the Act of 1916?—"Consariptionsuohasis provided for in the Military Service Act of last year certainly is, in seeking to send men beyond the seas without their consent." Your point is, then, that the Military Service Act provides service outsido New Zealand, and you contend that the Parliament had no power to pass it; and that is relevant m this ca'se becauso somo persons are charged with speaking against the statute?— "Yes, sir." The Defonce Act of 1909, continued counsel, provided for service outside Now Zealand, but only voluntary service. No further legislation on tho subject was passed till 1915, when the Expeditionary Forces Act was passed. There was no limit to the power of the Parliament of New Zealand to pass such an Act as this, either, because tho service abroad would Be voluntary, end would be like a contract of personal service outside tho colony for those who were patriotic onough to enrol. Chief Justice: Had the Parliament of NeV Zealand jurisdiction to have a voluntary force beyond tho _ three-mile liir.it? You are admitting it had.—"l admit that it had power to raise a forco and discipline that force in New Zealand." , « Coiild tho disoiplino thoii be kept up abroad in the case of a voluntary force? —"No, sir, not under our Act; hut it could under the Imperial Army , Act." When General Botha marched across the border, his forco could havo dis-

solved itself?—"No; because the Imperial Army Act applied. The Imperial Army Act has power over New Zealand soldiers where they are volunteers."

Section 177, continued Mr. Hutchison, provided that where any force of volunteers or militia or auy other force raised in a colony was serving with, a part of His Majesty's regular forces, then in so far as the law of tho colony did not provide for tho governance of suob. a force, tho Imperial Act applied. "Thus," said counsel, "where a voluntary force comes within the command of an officer of the Imperial Forces, then' in so far as the local Act does not extend to enforce discipline, the Imperial Aot does." He , proceeded to contend that the Imperial Act did not apply to any but a voluntary force. After some disoussion of the point had taken place, he admitted that the contention was incorrect. Mr. Hutchison: That of course does not yet afect my argument that the forco raised in New Zealand caynpt be sent overseas unless its members are willing. Sir John Denniston: It destroys one of your points, but leaves you all the rost. Counsel again referred to the Constitution Act, and argued at some length in support of his contention that the Parliament of New Zealand had no legislative authority outside the three-mile territorial limit. The Chief Justice: If it had been, held by the Appeal Court that the Parliament or tho Arbitration Court could not deal with sailors and stewards aboard ships outside the three-milo limit the whole award about seamen would fall through, and seamen and stewards would be left in this position, that once beyond the three-mile limit the provisions of the Arbitration. Court would bo laughed at. ... On bohalf of these men charged in the Lower Court, you are raising a point that .is. goini to destroy, if your argument is valid, all the labour legislation affecting New Zealand seamen. "That may be so. I do contend that tho Parliament has no legislative authority beyond tho • three-mile limit." It might bo contended.for the respondents, said counsel, that some extraordinary power had arisen through the extraordinary circumstances of the present war. But the powers wero immutable, and could not be altered except by the Imperial authority that conferred them There was a remedy, if remedy it might be called. It was martial law.

Sir John Donniston: Which is really tho negation of law.—"lt simply nullifies for a time the whole law. But we have not come to that."

Mr. Justice Cooper: We may have to come;to that if your argument is sound.

Counsel, after further reference to the matter, said that any defect in tho New Zealand Constitution Act should be remedied by tho power which gavo it. An Act could have been_ passed by the Imperial Parliament giving the Parliament of New Zealand power to pass such an Aot as that of last year. It was questionable if the Imperial Parliamont would have granted the power, because it would have raised a question which had shaken institutions in other parts of the world. The third of counsel's main contentions was: That tho regulations of December 4, 1916, under several of which the appellants were charged and convicted, were ultra vires.

Ten out of the fourteen regulations of December 4 purported to deal witli matters outside of the colony, and were therefore ultra vires. The objection in' Semple's case was made against the regulations. of September 20, 1915.

A further submission made was: That, assuming the War Begiilations Act, 1914, to be within the competency of tho General Assembly in Parliament assembled to enact, the regulation No. 4 of December 4, 1916, made -under it in purporting to create a new offence —namely, one of "sojlitions tendenoy," was invalid., This did not apply to the -two appeals by Semplo in respect of , utterances prior to the regulations of December 4, 1916. Another point raised, which did not apply to Semple at all, was that tho informations, and the convictions following thereon,' were _bad in form and substance, as inclnding more than ono offence. In reference to the validity of the last contention, the Court disagreed with counsel, and counsel deferred to its interpretation. Counsel's final submissions were that on the hearing of the informations an essential step was omitted, inasmuch as the provisions of Section 122 (2) of the Justices of the Peaco Act, 1908 fas to the right of the appellants to trial by jury), wero not complied with, and that, as a matter of law, the alleged seditious utterance in eßcli instance, taken with its context and read or considered with the whole utterance or speech, did not come wfthin the meaning of 'the crime of sedition. Particular reference was made to the text of the defendants' speeches. The first speeches dealt with were those of Fraser and Brindle. Mr. Justice Chapman: Are not these speeches dangerous, inflammatory apeechesP—"l doubt that they are, except for the purpose of the repeal of tbo Act." Mr. Justice Chapman: Assuming that a person is' entitled to speak in favour of the/ repeal of the Act, there are many ways of doing it; but can a i».an safely, in these times, advocate the repeal of tho Act by such speeches as we have-here? They are the speeches of inflammatory agitators, are they not? Sir John Dennistou: Would the speeches, if put into practice, help to win this war! .

Mr. Justice Chapman: Wβ are at war, and the Empire and this country are in peril. We all knowthat. . . . In that state of

peril regulations are brought into existence, and those speeches are made. What are we to make of theso speeches as a whole? Counsel: The object has to be considered. Mr. Justice Chapman: But don't let the object mask the language. • Sir John Denniston: Or, to speak from .another point of view, the language the object. Do you contend that the immediate stoppage of the war would not be disastrous to the Empire, and is not the stoppage of tho war the object? Mr. Justice Chapman: Stopping the war means abandoning the men in the trenches now. The only way tn rescue the men in the trenches is to send more men, and win the war. Counsel: If the Germans (which God were to succeed, the stoppage of the war would not be a disaster.

Mr. Justice Chapman: Supposing tho Germans lad the means of paying eloquent speakers here, would they ask anything better of their ageuts than' that they should mak"e speeches like this? I don't suggest for a moment that these men would be capable of such a thing. . . . But, if my criticism is just, then is it not undesirable that these are dangerous and seditious speeches?— And I challenge anyone to say my criticism is not a fair and piopor one. Counsel: I wish that tho speeches' had not been made. lam here just to point out in what respects they are not seditious.

Mr. Justice Chapman: I don't doubt that you are doing your duty, Mr. Hulohison.

Mr. Hutohiso/l snid of Cooke's speed) that it was a somewhat touching address, and it was rather strange that exception should havo been taken to it. The speech of Thorn, next referred to, was the speech of a man who knew tho regulations, and know that he would incur the penalty. Chief .Justice: Then why should he growl ? Counsel submitted thai; the. speech

was an argumentative olio, in which there was no inoitement.

Sir John Denniston: It is throughout a strong epeech against the sending of more men. The question is only whether there was any evidence upon which tho Magistrate could convict. In respect to the first speech of Semple, Mr. Hutchison said there .was no sedition in it. In that case, at least, he submitted that the conviction must he quashed. The language in tho other two speeches was certainly Vftry strong, but it was merely rhetorio and vapour.

Chief Justice: The Government has dealt most kindly with him, in bringing him up under these regulations, and not on a charge of treason. Mr. HutcTiison concluded his argument, and tho Court adjourned till today.