ANTI-CONSCRIPTIONISTS

New Zealand Times, Volume XLII, Issue 9620, 28 March 1917, Page 7

ANTI-CONSCRIPTIONISTS

APPEAL AGAINST SENTENCES CASES HEARD BY APPEAL COURT. LENGTHY ARGUMENT BETWEEN COUNSEL AND THE BENCH. The Appeal Court, constituted of the Chief Justice (Sir Eobert Stout}. Sir John Dcimiston. Mr Justice Cooper and Mr Justice Chapman, heard a number of appeals arising out of sentences imprisonment passed on Ecitert Scmp' e. Peter Eraser, Thomas Jinndle, i‘ red Coolm and James Thorn tor broaches of the war regulations. Mr G. Hutchison, appeared for aPPC 1 ' lants and Mr J. W Sulmond tSohciloiCieueral) fur respondents.

POINTS OF LAW. The following aro.the points of law raised by Mr Hutchison. 1 That the War Regulations AM. 19U in pursuance of which the ' linns were made, under several subdivisions of which the appellants wmn convicted, was not within the /-ompc lency of the General Assembly in Pal Lament assembled, to enact m &o. tai a .-such resolutions purport to extend to matters and things beyond New . —the power of the General Asseaimj being limited by the Constitution -uc (ISSJI to the making ot laws tor the peace, order imd good government ot Now Zealand. ... . , 2. That the Military bervico Act, 1916. which is reierred to in regulation No 1 (1) ot December 4th, 1916, relative to ‘'compulsory military training or service,” in respect of which an offence was included in the informations (followed by tho convictions) against tho appellants, was not within the competency of the General Assembly in 1 arliament assembled, to enact in purporting to control and compel the services and ■ conduct of persons beyond New Zealand—such a power not being within tho authority' conferred on tho General Assembly by tho Constitution Act (1852). „ 3. That the regulations of December 4th, 1916 under several of which the appellants were charged and convicted are ultra vires. • 4. That, assuming.the War Eogulations Act. 1914, to bo within the competency of the'General Assembly in Parliament assembled to enact, the' regulation No. 1 of December 4th, 1916, made under it, in purporting -to create a new offence—namely, one of “seditious tendency,” is invalid. 5. That'the informations and the convictions following thereon arc bad iu form and substance as including more than one offence.

6. That on tho hearing of the infer, matious nn essential step was omitted, inasmuch as the provisions of section 122 <2) of the Justices of tho Peace Act. 19CS (as the right of the appellants to trial by iury) were not complied with. 7. That ns a matter of law. tho alleg. ed seditious utterance in each instance, taken with its contest and read or considered with the whole utterance or speech, does not come within the meaning of the crime ot sedition. GOVERNMENT'S POWERS.

Mr Hutchison said there were seven casts in all, the first five ot which arose out of the regulations made on December 4th last year under the War Regulations Act of 1914. Semple's case was included in the first five. There were two objections applying to all the cases, those which raised the question ot the competency of the General Assembly. The Chief Justice; “The competency of the General Assembly to pass tho Act; do yon contend that the judiciary can overrule Parliament?”

Mr Hutchison: “No, sir, I don’t suggest it." The Chief Justice: “Then you cannot raise it." Mr Hutchison; "1 am asking the court to interpret its bearing on the subject." The Chief Justice: “You then assume the Act i? valid.” Mr Hutchison: "No. I challenged the competency of the General Assembly.” Counsel went on to refer to the terms of the War Regulation Act of 1911. It was different trom other Acts on the statute-book in its scope and language. It dealt no doubt with an emergency, but the language was unusual, “For the bettor securing of the public safety and the defence of New Zealand, and for the effective conduct of the military preparations of His Majesty during the war." This was different to the milder language of the Constitution Act, which dealt with the peace, order and good government of New Zealand, and appeared to be borrowed from the Defence of the Realm Act of Great Britain, passed a few months before the Dominion Act, in which such terms as "public safety" occurred. The Chief Justice: “But surely you don't say that the Parliament of New Zealand cannot deal with the public safety Mr Hutchison: "Yes, it can deal with it.” The Chief Justice: “And all its citizens wherever they are." Mr Hutchison: “I don’t go so far. Tho Act had been amended in 1915 by striking out the words which limited tho period of imprisonment to three months in the case of British subjects. Previous to that only aliens could bo imprisoned for a longer period than three months."

The other point in regard to' constitutional law was No. 2, that tho Government had no power to pass the Military Service Act. , CONSCRIPTION NOT NEW.

The Chief Justice asked Mr Hutchison if ho suggested that conscription was new to New Zealand. Mr Hutchison said that conscription as provided for by the Act of last year certainly was. in seeking to send men beyond the sea. The Chief Justice: "So far as that is concerned; but conscription has been in existence for 74 years. Your point is that the Conscription. Act provided for sending men out of New Zealand and that Parliament had no power to do so?"

VOLUNTEERS AND CONSCRIPTS. ilr Hutchison said that the root of the matter was the Act of 1909, which provided for the raising of a volunteer force in New Zealand for service outside New Zealand, but only if they consented. There was nothing further in the way of legislation until 1915. The war began in .1911. but no regulations on the subject of military service were made till 1915. In that year the Expeditionary Forces Act was passed. The Act made provision for raising expeditionary forces for service abroad during the present war. There was no limit to the power of the Parliament of New Zealand to pass such

an Act because the service abroad would be voluntary, it would be like a contract for personal service outside the colony. , Mr Justice Chapman interjected that it would not be quite like that because any man willing to break the personal service could do so and lake the consequence in damages. , _ Tho Chief Justice asked it the larliament of New Zealand had. jurisdicticu to have a volunteer force beyond the three-mile limit? Mr Hutchison: “That is a question. Tho Chief Justice: “But you are admitting thev had.” Mr Hutchison: "I admit they rad power to raise the force and discipline the force/' Mr Justice Chanman: “In tho case of a voluntary torce could discipline be kept up abroad?" Mr Hutchison; “No. not under our Act. It could under the imperial Army Act.” , Mr Justice Chapman asxed U toe forces led by General Botha across South-West Africa could bo dissolved. Mr Hutchison: “No, because the Imperial Army Act would, have applied. The Chief Justice: “Then the Imperial Army Act would have power over New Zealand soldiers?” Mr Hutchison: “Certainly, where they have volunteered.” The Chief Justice: “But tney have not volunteered in the imperial forces; only in the New Zealand forces.” Mr Hutchison said the Impena. Army Act incorporated the Army Act of 1881. Section 177 provided that wherever any force, volunteer ,or militia, or any other force is raised in India or in a colony any iaw of India or the colony might ex tend to the officers and men belonging to sued: force, whether within or without the limits of India or colony, and wherever such forces aro serving as Her Majesty’s forces, then so far as tho law of India or colony had not provided foi the government of such force, this mot, subject to modifications of such general orders, would apply to officers and men respectively mentioned in tho preceding section of the Act. It might bo contended that the following words would include conscripted forces —“where any force of volunteers, or of militia or any oilier force is raised." and so on. He submitted that it could not. The Chief Justice asked what bearing this had on the case. Mr Hutchison said that unless section 177 could be made to apply to, forces raised under the Military Service Act„ tho Act of last year, more particularly the sending of men. out of the colony, was .ultra vires.

iur tmapmai, asked what was the meaning or “any other force"? Mr Hutchison said it must be a volun. teer force. Tuo militia was not a volunteer force in wow Zealand. The words must be construed as volunteers anq militia, and couid not be extended to include a conscript torce. If he were ngnt, then tne very soul and essence oi tho Military Service Act of last year disappeared. While the General Assembly nad unlimited ‘power to deal witn its subjects within New Zealand, it had none to send those across the seas. He had always understood that it was a principle of sound law, in England that parliament never legislated tor hypothetical cases. It dealt with what it know. In 1881 there was not a conscript within the whole wide bounds, and the section must bo read in the circumstances as applying to the forces then known and understood. There was no Change in the position ami tho forces, apart from the regular forces, were ednjtmed to tho volunteers and militia.SCOPE OP CONSTITUTION.

Coming to deal with the scope of tho Constitution Act, which gave tho General Assembly power to secure peaye, order, and good government, counsel said if the Legislature attempted to make legislation on the high seas, it was going beyond its powers. The Assembly was not empowered to go beyond the powers granted to it by Imperial Parliament. Ho referred to the case of the Wellington Cooks’ -and Stewards' Union, in which the Chief Justice had held that the Supreme Court had power to con- . aider* whether a statute was ultra vires or not.

a'ho Chief Justice said that if it had been held by the court that Parliament or the Arbitration Court could not pass legislation affecting sailors and stewards on board ship and beyond the three milo limit the whole award would lapse* and the seamen and stewards would be in the position that once beyond the three mile limit the decision of the court could bo laughed at. New Zealand had been left in the peculiar position that beyond that limit the people and Parliament were helpless. Mr Hutchison said New Zealand could send an expeditionary force across the sea if it were a voluntary force. The Chief Justice: "But once it got beyond the three mile limit there would be no control over it.” Mr Hutchison; "Unless there was an Imperial Statute such as the Army Act dealing with it.” ULTRA VIRES. Counsel then raised the- third of his points at law', namely, that the regulations of December 4th, 1916, were ultra vires. Both the regulations and the Act were ultra vires.' He also held that No. i of the regulations was invalid, in that it purported to create a new offence, and that the information and the conviction following thereon were bad in form and substance as including more than one offence. Thee Justice of the Peace Act provided that accused shall bo asked whether they elect to bo cried by a jury. Defendants were not represented at the hearing beyond the application for bail, which was refused, but the fact that defendants did not themselves in the first Instance claim trial by jury was not important. Mr Justice Cooper said that in ordinary cases when a man elected to bo tried by a jury he was committed for trial and an indictment prepared. Tho section of the war regulations said there should be no indictment. .Mr Hutchison said the regulations provided that the prosecution should proceed by way of summary proceedings and not by way of indictment. Tho former phrase was more colloquial than technical, and indicated _ a procedure rather than a determination. OPINIONS ON THE SPEECHES. Counsel then proceeded to deal with the speeches generally, with the object of satisfying tho court that from no point of view could it be said that the speeches were seditious utterances. Referring to the speeches of Peter' 1 raser and Thomas Brindle. counsel said that there was nothing in tho speeches to excite dissatisfaction with tie Government.

The Chief Justice said the speeches were pro-German utU; mces: if they were made in German.- the speakers would have been severely dealt with. Sir John Denniston said that counsel would be inclined to say that the court was not a German court. Mr Chapman asked what would bar* happened had the people accepted tbft views expressed in the speeches? Mr Hutchison: "I don't know." ATr Justice Chapman: "The Germans xrould walk over Europe."

Mr Hutchison said the sentiments ut. tered supported the repeal of the Con soription Act. Mr Justice Chapman: “And if that wore done what would happen?” Mr Hutchison said that a single word urging opposition to the operation of the Act could not bo found in the speeches which only urged the repeal of the Act.

The Chief Justice: "1 cannot say that: you must surely assume that a judge knows the. English language.”

Air Justice Chapman asked if Germany had agentu in the country could they ask anythin? better of their agents than that they should make speeches like those of appellants? Air Hutchison said the speeches did not affect the good government of the colony. Counsel went on to deal with the speech of Cooke, one of tb* appel-

lants, in which tho speaker said that the war regulations were made for slaves and no freeman would tolerate them. Mr Justice Cooper said he regarded the speech as that of a man perfectly sincere and an able man. The Chief Justice said that if he were a true citizen he must obey tho laws or leave the country.

Referring to Thomas’s speech Mr Hutchison said it was made by a man who knew the regulations and knew he would incur a penalty for what he was saying. Tho Chief Justice -. “Then why does he growl r" Counsel then went on to deal with the speeches of Robert Semple, and admitted that there were some strong passe res in them.

Tho Bench made some strong .remarks of a general nature. Sir John Denniston seizing on some remarks about the ‘‘Red Federation” in Semple’s speech and the Chief Justice stating that Semple had advocated civil war and was guilty of treason and had got off lightly. Mr Hutchison said that the remarks of Semple were rhetoric, which caused laughter on the Bench. Counsel , shortly afterwards concluded his argument, and the court adjourned until 10.30 a.m. to-day.