BANISHED CHIEFS

Dominion, Volume 21, Issue 14, 11 October 1927, Page 11

BANISHED CHIEFS

APPEAL BEFORE FULL COURT VALIDITY OF SAMOAN ACT QUESTIONED WAS POWER EXCEEDED? Argument as to whether the New Zealand General Assembly possessed authority to pass the Samoan Act of 1921, under an ordinance of which two Samoan chiefs—Tagaloa and Fuataga—were sentenced to six months’ imprisonment for disobeying an order of banishment, was heard before the Full Court yesterday. For appellants it was claimed that the Legislature, in* passing the Act, went beyond the powers of its jurisdiction; The Court comprised the Actin" Chief Justice (Mr. Justice Sim), ana their Honours, Mr. Justice Herdman, Mr. Justice Reed, Mr. Justice Ostler, and Mr. Justice Adams. Sir Vohn Findlay, K.C., with him Mr. R. E. Harding, appeared for appellants, and Mr. M. Myers, K.C., with him Mr. A. E. Currie, for the respondents. Practically the whole of the day was taken up in hearing appellants’ case. Mr. Myers, who opened his case'shortly before the adjournment, will continue his address to the Court this morning. Sir John Findlay stated that as the points involved were identical the decision in one appeal would cover the decision in the other. He would deal with the appeal of Fuataga. Facts of Fuataga’s Case. The facte of the case, he said, were that an order for the banishment of Fuataga was made .by the Acting Administrator under Clause 3 of the Samoan Offenders Ordinance 1922 on July 5, 1927. The order was served on Fuataga on July G, 1927, and the following <Jay he was found in Apia, in the district of Mamanaga North, in Western Samoa. An information charging Fuataga with a breach of the order was filed in the High Court of Samoa, the information being heard before the Court on July 8 and 11, 1927. Fuataga was present throughout the hearing, and was represented by counsel. He. pleaded not guilty, but offered no evidence. Fuataga was sentenced to six months' imprisonment, and after judgment had been given leave of appeal to the Supreme Court of New Zealand was granted on the application of counsel for the defendant, Fuataga. Tho decision of tho High Court was made under clause 3 of the ordinance, which read.-—"lf the Administrator is satisfied that the presence of any Samoan in any village, district, or place is likely to be a source of danger to the peace, order, or good government thereof, the Administrator may by order signed by him, order such Samoan to leave any village, district, or place in Samoa and to remain outside such limits for such time as the Administrator shall think fit; by the same or any subsequent order the Administrator may order such Samoan to reside in any place specified in such ordre."

"A Source of Danger.” Chief Justice Woodward, in his judgment, had said that the order stated that the Administrator was satisfied that the presence of Fuataga within the area in question was likely to bo a source of danger to the peace, order, and good Tho ordinance aimed at the promotion of tho general welfare of the native people, and it was entirely consistent with natural justice and legislative precedent to subordinate, where necessary, the rights of the individual to the welfare of the people as a whole. Considering the history of this piece of legislation, its purposes, the safeguards it contained, and tho community for which it was made,, he could not regard it as contrary to any principle of natural justice inherent in the law of England. * "A Startling Doctrine,” Sir John Findlay said that the provisions of the ordinance "which provided for dealing with offences against the order, peace, or good government of Samoa wore very wide, so wide in fact that no time of banishment was necessarily specified, this remaining at the discretion _ of the Administrator. Under the ordinance it was not necessary to inform tho offender of his offence. A person might have donothing which, in the opinion of this Court, might be a source of danger to Samoa, but that would not make it unlawful for the Administrator to consider that he was a source of danger. The fact that the Administrator had issue the order had been held to prove that he was satisfied that there was sufficient cause, and that no inquires or investigations were, therefore, necessary. "It seems,” said Sir John Findlay, '‘rather a startling doctrine under our British sv tern of justice if the judge below is right, but there it is.” Banishment. He contended that the order made under the ordinance was bad, and that it imposed a punishment not provided for in the Samoa Act of 1921. The arbitrariness of the law under which the Samoans were living was shown by the fact that a man under an order of banishment, might immediately set about obeying it, but. notwithstanding he might be arrested and removed. "Banishment, he said, "is a grave limitation of personal liberty because, the confires of the plac to which the person was banished were stated. It is therefore clearly a punishment. This session tho New Zealand Legislature has passed an Act. that on the executive administration of the Territory, any person might be called upon to appear Before tho Administrator, who should afford him full opportunity to. state his case, after which the Administrator might order banishment. I submit that what has been put into the 1927 Act should bo applied to the ordinance of 1921. Mr. Justice Herdman: That applies to Euroneans. Sir John Findlay: And to Samoans,, too. The Administrator had no power to make an order for banishment before the Act Of 1927. "Samoan Act 1921 Ultra Vires.” “I submit," he continued, “that the Samoan Act of 1921, under which the Samoan offenders ordinance of 1922 was enacted, is ultra vires of the General Assembly of New Zealand, and that if it is not ultra vires then the Samoan offenders ordinance of 1922 is ultra vires. It might be a startling novelty that an Act passed by the whole machinery of Parliament is invalid."

"No Authority to Accept Mandate.” Counsel declared that New Zealand had no authority to accept the mandate and that the New Zealand General Assembly could undertake nothing beyond the econo o f the jurisdiction conferred upon it by the Constitution Imperial Act of 1852. Whenever the jurisdiction oi Now Zealand had been extended it had been done either by order in council followed by an Act, or by an Act of the Imperial Parliament. A mandate could not trivo what an Imperial Statute alone could give—extended jurisdiction. "Article two of the mandate," remarked Mr Justice Adams, "gives power to New Zealand.” *'T -know that," replied Sir John Findlay. "lint my submission >'s that the mandate eannot override the Imperial Parliament, which limits, the power of New Zealand to prescribed territory." Sir John Findlay went on to say that the terms of the mandate were not in the treaty of the Peace Act of 1919. The fact remained that the mandate “should be embodied in the Peace Treaty, but this was abandoned. Ho submitted that OrderS-in-Council made under the Peace Act could not enable His. Majesty to extend the Constitutional Act of New Zealand. Mr. Justice Adam®: Does that of necessity foUovt

Sir John Findlay: It is in the preamble. I submit that if tho effect of tho ordinance made under treaty is to extend tho jurisdiction of the General Assembly of New Zealand, then it is ultra vires. Once constitutional government is granted to the Dominion the King has no more right to interfere with it than ho would have over tho Imperial. Government itself. Council also said that there was a f.rmo in New Zealand when, the Governor had to reserve for His Majesty's consent certain classes of Bills, but that was now changed. _ , Mr. Myers: Is that Statute or Royal instruction? Sir John Findlay: Royal instruction. Mr. Mvcrs: I think so. "Sovereignty Not Power.” "Conquest of territory,” proceeded Sir John Findlay, "gives sovereignty but not power as in th- case of Samoa, ‘there was no power in our Constitutional Act to pass or carry into effect legislation except for New Zealand. Tho area of territorial legislation of New Zealand has to bo found in Imperial Statute. Both in tho preamble to tho Samoa Act of 1921 and in the mandate there is provision that the mandate is to be exercised on behalf of His Majesty by the Government of New Zealand and that tho Government is to have full power over the administration of Samoa. What Is the Government? “The question is what is the Government ot New Zealand, not tho General Assembly of New Zealand, but tho Government 'of New Zealand. In the encyclopaedia of the Laws of England the word government is ." Mr. Justice Herdman: There is no legal entity of the word government. Sir John Findlay: Wo will have to give it some term. Air. Justice Reed: If asked what was the Government of New Zealand you would say the House of Representatives, Legislative Council, and Governor-Gen-eral. Would there be anything wrong with that? Sir John Findlay: The Government is the executive. The word Government is a word of vague import. In the encyclopaedia of the Laws of England it is stated that the word Government has no technical use in English constitutional law, but it described Government as a. collective term for Ministers of tho Crown. The King’s advisers may have realised that the General Assembly would have meant conflict with (he Constitutional Act and intended tho King’s Ministers in New Zealand to carry out the mandate. The King,. by virtue of the mandate, could have held that the laws were to be administered in Samoa by his Ministers. By moans of Orders-in-Council the jurisdiction given by the Constitution could not be enlarged upon. Could it be by any means that an Order-in-Coun-cil could override an Imperial Statute? If Imperial Statute limited the area of jurisdiction, tho Dominion could not go beyond that. Inquiry or Trial. It was contended by,Sir John Findlay that there should have been some method of inquiry or trial before the two chiefs were banished. Mr. Harding also briefly addressed the Court. A Unique Case. "Tliis case is unique,” declared Mr. Myers in his opening, remarks, “because the party which is invoking the jurisdiction. of this Court is endeavouring at the same time to show that the Court has no jurisdiction and is a nullity. I would not bo doing my duty to the Court if I did not raise tins question. It is not infrequent that tho Court has to consider whether it has jurisdiction to do this or that particular thing. In this case the only jurisdiction that this Court has is the jurisdiction of the Samoan Act-con-ferred on it by tho New Zealand Parliament. ’ Tho appellant comes to the Court by wav of appeal and- then- contends that .the very Act under which he invokes its jurisdiction is ultra vires. Supposing that this Court did say that all these Ads regarding Samoa were ultra vires, the people in Samoa bolding these two appellants could still say "No," that tho proper Court and only Court that can deal with this aspect of tho matter is tho Court of the King s Bench in England, My learned friend is asking tho Court to tay it is a nullity and commit judicial suicide.” Mr. Justice Adams: You say that this Court for this occasion is a Court created for an occasion? Mr. Myers:. Precisely.. "I must .protest against all this, interjected Sir John Findlay., ‘'When the case was first mentioned in Court several days ago it was understood there would be no exception taken to its jurisdiction.” Air. Myers remarked that an application to the King’s Bench Division was, the proper procedure if . the Court here had no jurisdiction. . The Court adjourned until this morning.