CENSORSHIP APPEAL

Grey River Argus, 12 August 1944, Page 2

CENSORSHIP APPEAL

MAJORITY'VERDICT For Newspaper Editor P.A. WELLINGTON, August 11.. The conviction of Robert Hewitt Billens, editor of the “Manawatu Times,” Palmerston North, for tne censorship breach was quashed by a majority decision of the Full Court given to-day. Justices Johnston and Northcroft found in favour of Billens’ appeal. The Chief Justice, Sir Michael Myers, dissented. He held that there had been a breach of the regulations, and that the appeal should be dismissed.

On December 6, 1943, Billens wrote and published an editorial article entitled “The Gag Again.” This was a severe criticism of the operations of the censorship and of the Director of Publicity, Mr. J. T. Paul. He described the Director as “the supreme artist in suppression in the AngloSaxon world to-day.” He also, stated ‘‘what drove the gagging machine into top gear was maternal solicitude for the Government.” He asserted: “The Government’s gagging (expert could be relied on to find an excuse at any moment of the day or night, and on an}' matter, from growing onions to coalminers’ strikes.” He further stated that “on three occasions lately tne gag has been applied.” He also stated: “There is an element of grim humour in the fact that all three recent cases of suppression concern workers for. whose special interests the Government exists, or claims to exist. 0 Arising from his editorial, Billens was convicted by Mr. H. P. Lawry, S M. of an offence under the Censorship and Publicity (Emergency) Regulations, which prohibit any statement. or any indication, that any matter had been required to be submitted to censorship, or that the Censor had refused his authority for the publication of any matter. Billens was fined £5 Is. His appeal against this conviction, the Full Court, upheld by a majority verdict. CHIEF JUSTICE’S FINDING. The Chief Justice, Sir M. Myers, in his dissenting judgment, stated that, on the argument, he was very mucn disposed to think that the charge was misconceived, and that the appeal should succeed. That view had largely been induced by two factors —tne method of draftmanship of the Regulations, and great stress laid by counsel .on both sides of “directives” issued by the Director of Publicity, which seemed to be regarded as basic to tne prosecution. His conclusion was that, if apparent difficulty caused by tne draftmanship could be met,—and he thought It could, —the “directives' had no real bearing on the case, and they could be disregarded. If tne validity of the Regulations had had to be tested immediately after they were made, it was quite probable that some of them might have been heict to be ultra vires. The Chief Justice then stated what he conceived to be the principles to be applied in determining the case. First, as had been said by the Lord Chief Justice of England, “While it is important, and indeed essential, that Ministers should not be hampered in the full exercise of the powers entrusted to them under the authority of Parliament in the present emergency, it is no less important to see those powers are not exceeded.” Second, it was the duty of the Court to preserve, as far as it could, the right of freedom of speech, which had come to be regarded as one of the sacred rights of freedom of the subject. Thirdly, if, however, Parliament, or its validly-authorised delegate, thought fit, during times of emergency by proper enactment, to curtail that’right of free speech, it wastne duty of the Court to give effect to that enactment. It was not for tne Court to doubt or to question its wisdom. , “Fourthly,” continued the Chief Justice, “the Court must see that tne meaning of the enactment was clearly expressed before it held that a subject’s right of free speech was taken away. In this case, it was not the action of a Minister, acting under delegated authority of Parliament, whicn was attacked, but that of the Director of -Publicity, upon whom the regulations conferred wide powers. Indeed, the Socilitor-General claimed, that the Director’s position was, for all practical purposes, very much, like that of a Minister; but, thinking that ’ the Director's directives had really no

bearing on the case, it was unnecessary to discuss whether matters mentioned therein could be said to .be such that the publication, thereof would be “prejudicial to the public safety” within the purview of regulations. The Solicitor-General claims that that was a matter entirely for the determination of the Director of Publicity, whose opinion, or exercise of discretion, is not examined by the Court. In the absence of proof of good faith, the question does not arise on the view I take, the very essence of offence, the words “any matter, ’ being specific and “kina of matter” generic. I can find nothing whatever in the Regulations to prohibit comment upon the Regulations or upon the censorship or criticism of the administration of the Government, or of the conduct of the Director of Publicity and his administration of the regulations. It is only if a newspaper contains a “statement or indication” that any matter, or kind of matter, has been required to be submitted to censorship, or that the Censor has refused his authority, that Clause B of regulation 16 (which cannot be read with other clauses of that regulation), is contravened. I thinic that the whole of the first four paragraphs of the article may be regarded as comment, or criticism, which is in no way prohibited by the Regulations. The ' criticism is, no doubt, severe, but with its severity or its fairness this Court is not concerned. The fifth paragraph of the article, and portions of subsequent paragraphs, do amount to such a breacn. It is true that the fifth paragrapn does not state, or indicate, any specific matter, but it does indicate that the Director of Publicity has refused his authority for the publication ot matter relating to the airing of grievances by (or perhaps of) workers. That is how the ordinary reader would interpret the article, and, in my opinion, the airing of grievances of. or by workers, is a “kind of matter.” The article implies that a refusal has been given by ’the Director of Publicity, but he. clearly, in my view, has the capacity of the Censor under the regulations.” The Chief Justice said he was of opinion that there had been a breach of Section A. THE MAJORITY FINDING. Mr. Justice Johnston said that every conviction must have a factual foundation. What were necessaryfacts to support this conviction depended upon the interpretation placed upon the regulations. That interpretation involved a determination on an issue of the utmost public importance. “Censorship and freedom of the press are antithetic doctrines. The need of censorship in time of war at tne expense of freedom of the press is not denied, nor is it denied that the organ on whose shoulders reaily lies the responsibility for public morale has faithfully excluded news likely to be advantageous to the enemy, or detrimental to public safety. But relations between the censorship and tne press must, in the nature of things, be frequently strained, and mutual distrust give way to actual animosity. The press has won only by many a hard fought battle freedom of publication that every editor thinks it his bounden duty to the public to preserve. Like pantrymaids who, in the presence of crockery, seem seized with an irresistible urge to destruction, censorship seems, when it .faces the press, powerless to restrain an inborn lust of suppression. In this inflammable atmosphere, the Censor struck al match by issuing a set of directives, to which, unless content to surrender its fredom. the press could well feel obliged to make a protest. That this was the state of affairs appears from evidence given by Billens before the Magistrate, Directives which proved the last straw explain the indignation that they aroused m the breast of Billens, and illustrate a propensity on the part of the Director of Publicity to expand his sphere, of activity to an astonishing extent.” . His Honour then quoted directives which concerned threats to strike, also butter rationing, the employment of policemen’s wives in civil or* military employment, and incitements to commit a breach of any emergencj 7 regulations. To meet the contingency that the circumstances of the war might require enlargements of subjects on which information could not be given were set out in Regulation 13. The Director of Publicity was not set up to control all letterpress in general. His function was not, as was, in the main, that of the postal, and telegraphic censors, one of excision, but of prevention. His task was to add to the subjects, on which information could not be given, under the regulations. such other subjects: as w , in his opinion, required by the public safety. Section One of Regulation lb prescribed the metnod. in hic . Director of Publicity should fulfil hrs task. It gave him the Power w here he thought the publication of mtor

mation might be prejudical to the public safety, to prohibit the publication, by notice in writing, of information, described in such notices. The Director was given, for the purposes of the regulations, control over all letterpress. The Director of Publicity was chiefly concerned with the daily press. One would have expected, therefore, that if a leading article which followed the issue of certain directives, or any part .of it, amounted to an offence against the regulations, it would be an offence which infringed on the sphere of the Director's control of news in daily papers. Tne prosecution, however, says this is not the case. . And they say so, it is clear, not because moral guilt lies less in. the breach of the main purpose of the regulations preventing publication of information useful, to the enemy, but because the directives do not comply with the requirement of any kind of notice under Regulation 15. The only evidence put in for the Crown was the leading article. Directives, although put in evidence by Billens. cannot be relied upon by the Crown, as it does not claim that, they are notices under Regulation 15, or that, if they were, they were not compiled with. The Crown does not allege that the article gave information on a prohibited matter. They apparently regard the directives as. meaningless. But, the gravamen of their charge being that authority was refused, the presence of matter to which the refusal relates must be in evidence, if there had been a refusal of authority, predicting an application for authority, on a matter which, by Regulations or notice, required authority or approval, one would have expected an application in writing, and a' refusal or approval in writing to be put in. That would be the best evidence if the refusal of authority. predicates an application for authority. No such evidence has been forthcoming, because, in fact, no application for approval or authority was ever made, nor was any refusal ever made. No single statement in the article referred to a refusal by the Censor to grant authority to publish, in response to an application for permission to publish, nor was there any such inference to be drawn from the article. . The statements that the Director of Publicity was preventing newspapers from referring to certain matters was not, in view of the different functions given him, the same thing as refusing authority. The Director of Publicity's separate’ functions were: (X) Prohibit, by notice the publication of information on matters specified in notice issued by him; and (2) to grant authority for publication of . matter conditionally prohibited until he granted approval. The distinction was more than nominal, and could not, on prosecution for an offence, be slurred over. Proof in one case was necessarily different from that of the other. He 'did not think that the various statements quoted in the article by the presecution amounted to a statement, or an indication of a refusal to authorise comment or information, it had not been proved that any information had been given on aprohibition subject, or any statement published referring directly or indirectly to any matter that had been prohibited. Ine prosecution had not proved any faevs establishing an offence against the legulations.