APPEAL CASES

New Zealand Times, Volume XLII, Issue 9621, 29 March 1917, Page 7

APPEAL CASES

ARGUMENT FOR THE CROWN MILITARY RIGHTS OF COLONIAL PARLIAMENTS. DECISION RESERVED. In the Supreme Court yesterday the hearing of the appeal cases of Robert Semple, James Thom, Peter Fraser, Thomas Brindle, and Fred Cooke was resumed, before Their Honours the Chief Justice (Sir Robert Stout), Mr Justice Denniston, Mr Justice Cooper, and Air Justice Chapman.

Air Hutchison appeared for appellants, and the Solicitor-General (Air J. W. Salmond) for respondents. Air Salmond said it had been contended that the Alilitary Service Act was invalid, and that to legislate for military service beyond the seas was outside the powers of Parliament. If the Act were null and void it did not follow that the convictions were bad. Even if the War Regulations had not been in existence, there would be enough sedition in the speeches to warrant the prosecutions. To advocate the abandonment of the war would be equally seditious, even if the Act had not been passed. There were, other which were offended, •by the speeches of appellants —the military regulations of the Government. The convictions did not stand or fall by the Alilitary Service Act. The Chief Justice said that there was a ruling to the effect that if a by-law were bad in part and good in part, and it was impossible to sever the one from the other, the by-law, could not be held to be wholly bad. Mr Salmond said that was the law.) There was only one reference in the 1 Act .to the regulations. If that were struck out, there were sufficient left to justify the information. It was not necessary in the present case to judge whether the Act were, good or bad, but it was expedient that the question be definitely settled. The Chief Justice said that one of the statements made by an appellant wag that conscription was undemocratic. It was a very funny thing that two of the most democratic countries of Europe had conscription. Air Salmond: “Democratic probably : means in that utterance the right to do what you like.” Appellants were relying on the Imperial Army Act of 1881, section 177, which had been amended from time to time, dealing with the powers pfcfcolohial Parliaments to raise troops. A note to the section said that it strictly referred to colonial troops, and that colonial Parliaments could apply the provisions of the Act. No other meaning could be given to the section than that it was an empowering section extending expressly the power of colonial Parliaments. Express authority had been given to govern colonial forces when they were out of the colony. A force could be raised by :the (authority of Parliament, ;: voluntarily or by compulsion- The section gave express authority to govern its own military forces out of the colony. This was part of the functions of colonial Parliaments. There were no limitations as to the character of such troops. Air Hutchison had to admit that this section went the whole way,’ unless he could confine it to volunteers. It was not enough to say this, but it must be said to be limited to persons who volunteered. The Act of 1915 Was the Act under which the forces were raised—not the Military (Service Act. When this Act was passed it wa« admittedly a valid exercise of the powers of Parliament to raise forces and to govern and discipline them outside of the colony. The Act of 1916 contained two provisions relative to men leaving New Zealand —sections 15 and 16. These dealt with desertion of members of the Expeditionary Forces. Mr Justice Cooper said that the j Expeditionary Forces Act was incor-i porated within the Military Service! Act. (Mr Salmond said that was so. He could not understand how it could be contended that Parliament had no power to compel a man to serve abroad.

The Chief Justice said that Mr Hutchison claimed that Parliament could not force a man to go outside the territorial limits of New Zealand. Mr Salmond: “I contend that we could pass a law to compel every man in New Zealand to leave to-mor-row.”

The Chief Justice said that the peace, order and good government of New Zealand were not to be limited by territorial limits. If it were necessary for the peace, order and good government of New Zealand to have a ship twenty miles off land to stop peopn coming into the Dominion, it was within the powers of Parliament to do so. It was ridiculous to hold that New Zealand could do nothing beyond the three-mile limit. That was his view of it. The constitutional powers of tho New Zealand Parliament to defend the Dominion were practically unlimited. Mr Salmond went on to refer to Australian and Canadian cases. It had been held by the Privy Council that the Canadian Parliament had power to expel aliens if necessary for the good government of the realm. In every such case the real question was: Was this statute enacted for the peace, order and good government of the State? . . Air Justice Denniston: “That is the crux of the whole matter.” Air Salmond said that if the British Government authorised a search by revenue cutters on vessels close to the shores of the United Kingdom, on what principle should colonial Parliaments be debarred from exercising the same power? The Chief Justice; “Foreign vessels?”

Air Salmond: “I don’t say that; that would be a question of expediency.”

Mr Salmond went on to refer to the Australian case mentioned by Mr Hutchison, in which it had been decided by the court that Parliament, by reason of its power to mako laws for the defence of Australia, had power to fix the price of bread in Australia. It was not necessary to rely on any special provisions of the Alilitary Acts for power to send forces abroad; the right was inherent in the power of colonial Parliaments to defend themselves against aggression by .military forces beyond its shores.

Tlie Chief Justice: “Sureiv if Parliament has power to defend Jfew Zealand its operations cannot be confined to defence within the three-mile limit.” Referring to the second law point raised by Mr Hutchison, that Parlia-

ment was not competent to pass the Act, Mr Salmond said the answer to :it was covered by his reply to the first. The third contention was that the regulation was invalid because it created a new offence of “seditious tendency*” As he understood the contention it was (that sedition was already defined by istatute and that the regulations- expended the offence by including; seen-, tious tendency. .He regarded that’.'as ja fallacy. The contention that the .speeches were not seditious was one on ) which he would not dwell. Two of the I informations against Semple were under the December, 1915, regulations. The remaining informations against : Bern fie and all the other appellants were made under the regulations of December, 1916. The two speeches of Semple practically amounted to incitement to unrestrained' violence and would have justified an indictment un- ■ der the Grimes Act. " Semple' -was charged also with making a statement calculated to interfere with recruiting. Semple had toned down his fiery utterances considerably after the passing of the regulations, but his language was such as' had repeatedly led, to prosecution and punishment in the' Dominion. Such liberty of speech as was claimed and exercised by appellants in a time of danger amounted to a menace against the peace, order and good government of the country. Mr Hutchison replied to some of the constitutional points dealt with by Mr Salmond. and cited authorities. The latter briefly replied. _ • The Bench reserved decision and the Court adjourned till next day.