QUESTION OF AFFIDAVITS

New Zealand Times, Volume XLIX, Issue 11225, 2 June 1922, Page 7

QUESTION OF AFFIDAVITS

WNAT ARE THE CHARGES ? POSITION OF THE MINISTER. DOCUMENTS NOT ADMITTED. “ACTING IN GOOD FAITH.” Upon the reopening of the oourt after the luncheon adjournment, Sir John Findlay said that charges of bias and of pre-determination* had been made against the Minister for Education, in the allegation that he had prejudged Miss Parks in Tegard to her alleged offences and had punished her without a sufficient inquiry. The affidavits showed, said counsel, that, according to the plaintiff, the interview of Taylor entirely contradicted the Minister, and that, together with the evidence submitted by Miss Park herself, all attempted to show that the Minister did not act in good faith. For the Minister for Education’s side of the matter, said Sir John Findlay, it should be at once stated that the Minister had made known the nature of the inquiry into Miss: Park’s conduct by the Beard of Education- and also as to the necessity of that inquiry. In the matter of bias, said Sir John, it was desired to show that the allegations of bias had been entirely disposed of by those affidavits. His Honour must assume that what was thus alleged could be proved, continued counsel; and he proposed to bliow what a disastrous result must accrue if the Minister had not the power to dispose of this lady’s certificate in circumstances which oounsel said he was able to disclose. “WHAT ARE THE CHARGES?” His Honour said he had got to know m the first place what the general nature of the charges was. Mr Myers: My submission is that, for the purpose of arguing this question .of bias, there are grounds for the inquiry. The question was. assuming the Minister had before him certain charges or statements which, if the regulations were good, justified him in making an inquiry under the regulations, was he to be debarred from doing so by pre-determination or bias?

There was. said counsel, no affidavit on filo from the Minister himself; there was nothing to show what was in the Minister’s mind in determining his action ; and there was a whole mass of affidavits on file as to the charges, their nature, and what was 6aid in various .interviews. His Honour: Must I not know what were the actual charges made against this lady by the Minister before I can determine what was the Minister’s right in taking the steps he did? AFFIDAVITS PREJUDICIAL. Mr Myers; It would he quite unfair, supposing Your Honour should find the official regulation “ultra vires,’’ it would be grossly unfair that these affidavits should he published at the present time. It would prejudice any action or step she might wish to take in the matter at a. later date. His Honour: I have already said 1 am not going into this matter at the present time. I think the gentlemen of the press can be relied upon not to publish anything in connection with these affidavits.

Sir John Findlay: But it is my duty to clear the Minister from these chargee of bias and pre-determination in respect of this lady’s case. Mr Myers: I propose then to go into the matter avoiding anything in the nature of invective. But I insist that there is no affidavit on file from the Minister, and consequently we can only infer what, was in the mind ai the Minister of which he complained. “GRAVE BREACH OF DISCIPLINE.” ‘ Sir John Findlay said the whole of the trouble originally arose from a letter written by Miss Park to the journal “National Education,” m connection with ’ the prosecution of Miss Weitzel, the circumstances attending whose prosecution Mi6s Park seemed to have misapprehended. That letter, claimed counsel, from its very tone and nature convicted Miss Park of grave breaches of discipline and of serious offences against heir duties as a teacher; and she nad made allegations against the Minister of Education, reflecting seriously upon him in his official and administrative capacities.

Mr Myers: The Minister certainly assumed from the very start the guilt qf this lady. His Honour: You say the Minister had .already pre-determined the issue as to whether her certificate should bo cancelled or not; but this is evidence that the Minister had made her an offer of a transfer to another school. Mr Myers - - (Yes, he did that. But he had alreadV in effect said: “You are guilty; but’ if you do as I tell you, very well there’ll be no more about it.” I don’t know what might have been the result of that if she had done as she had been told to do. Th Minister had, however, in effect, added: “But if you don’t do a® J tell you, I shall have to deal with you in the severest manner.” The Minister had, in fact, suggested Mr Myers, got himself into a difficulty by levelling a charge against Miss Park which could not be substantiated.

“WAS SUSPENSION PROPER?” His Honour: -Even if you are right in assuming that the Minister occupies a judicial; position, he must consider that he also occupies an ad minietrative position, under which ho had certain rights to administer the regulations. It was part of his duty to see that the provisions of the Education Act were carried out. Apparently, the Minister thought that’’the usual course of suspension should be adopted as in the case of civil servants. A civil servant under an inquiry is, I think, always suspended pending the result of the inquiry, Mr Myers: But it would be most improper, surely, to suspend a teacher on, the mere report of a school coni mittee; and th© Minister, in a most high-handed way, had in effect said to the chairman of tho school committee: “And if you, Mr Chairman, don’t do as I wish, I shall say in the House,” (under the cloak of privilege, the court should remember) -“that you are in sympathy with her.” It was not for the Minister to so arbitrarily determine. It was for the hoard to determine what they ought to do. It showed a wrong feeling on the part of the Minister, and his strong desire to dictate. “NO CONCERN OF THE COURT.” His Honour:-The .court is not concerned with any sort of feelings \ he had. The only concern of this court to determine the charges of bias and pre-determination. Sir John Findlay: We’Say that the letter from the school committee, enclosing the letter from Miss Park, itself embraced charges of ’ serious offences against her. The first thing I ask Your Honour to consider is the distinction, between the judicial and the administrative duties which the Minister had to discharge. The rule applying to a judicial tribunal could not apply to, an officer performing an administrative! duty. It was, proceed ed counsel, absurd to suppose that a Minister administering the Education Act should be stopped in his duties by any narrow ground of objection. One had to observe th© distinction between what preceded the time when he acted judicially and the judicial act itself; and one had to ask whether what preceded that was itself judicial or not. If such a state of things should come to pass that a Minister could not discharge his administrative functions, noone could say what would happen as the result. “A VICIOUS PUBLICATION.” What the Minister was anxious to do, proceeded Sir John Findlay, was to get over the difficulties in»his purely administrative capacity. The paper alluded to as published in Wellington by the teachers waß, declared counsel, one of the most vicious he had ever read; and His Honour could see that its whole purport was to preach sedition of the worst and most virulent type. That paper, continued 1 counsel, advocated the destruction of all law and order, the establishment of proletarian principles of government, and it was in fact a publication of the most .pronounced Bolshevistic type. Miss Weitzel, the teacher who had been convicted and punished for seditious utterances, said counsel, was a teacher and a student enjoying all the privileges of onr educational system; yet she had deliberately disseminated sedition, and, when punished, out of the 600 or 700 teachers in this Dominion, Miss Park, declared Sir John Findlay, seemed to be the only one who could express sympathy with her. Mr Myers: Is all this, or any of it, relevant to this case? His Honour: From your own pleading, is St not? “A GERMAN WAR LORD.” Sir John Findlay then proceeded to outline what had occurred in connection with Miss Park’s allegedly_ indiscreet letter; and Miss Park, said counsel, had, in the course of her criticism of the Minister, likened the Minister for Education to a “German war lord.” His Honour; But what have I got to do with such charges of sedition? Sir John Findlay: If you were tho Minister for Education and you had

had brought under your notice such a letter as the one Miss Park wrote to the paper, would Your Honour not have considered her action as being a serious offence affording you ample grounds for doing as the Minister

Further discussion then taking place between the court and counsel as to the relevancy or inrelevancy of the pleading, Sir John Findlay said: How can a Minister in charge of the administration of a department hold his peace when such allegations as bias and pre-determination are made against him? His Honour: But any public official might easily, and at any time, place himself, in the most innocent war, under aVhargg of bias or pre-determina-tion. “SHOULD NURSE CAVELL BE SHOT?” Sir John Findlay: But these charges against Miss Park did not originate' with the Minister. Months before that an indignant householder and taxpayer had referred to the alleged statements made by Miss Park, and had asked if Miss Park should be allowed to teach. young children that Nurse Cavell should be shot. Ab for the cancellation of 'Mias Park’s certificate, continued counsel, the Minister bad made -every reasonable inquiry before cancelling it, anti the whole of the circumstances would show in tho affidavits counsel could produce, that, instead of pre-determina-tion, the Minister had taken the stfetfe followed by him only after -the fullest inquiries possible had 'been made by him, and then 'only on the rtBUH of 'those inquiries. In the affidavits ho wished- to produce, said Sir John Findlay, he would show the court that a number of people had l wantpd to take their .children away, and did not wish them to bu taught by Mice Park, and counsel also would show what it was the Minister had in his mind when he -ordered the second inquiry to be made. His Honour: You are trying to show there was good reason for that inquiry ? Sir John Findlay: Yes; I wish to show that this second, inquiry was certainly nob due to bias or predetermination Surely, sir, in showing that he desired to hold the inquiry, that very fact should be enough to Show that the Minister had not already made up his mind on the subject. His Honour : We already know what the Minister said. The only question for us__to .estfelaJs on the subject of pre-determination. THE AFFIDAVITS AGAIN. Sir John Findlay then paid he desired to read some affidavits, the evidence of which would show -that tire Minister had not prejudged the matter. His Honour objecting emphatically to the reading of the affidavits, Sir John Findlay said he would, of course, have to bow to -the court’s ruling with all due respect. Nevertheless, .those affidavits would prove that H-i.s Honour again interrupted with an objection that he considered the reading of the affidavits should not be done.

Mr Myar:: The publication of these affidavit®. Your Hortour, can do no good, and may prejudice the plaintiff very unfairly because all 6orts if affidavits in the Woirarapa district could have beer, obtained which have not been obtained. It must be assumed that there were grounds for this inquiry. “AFFIDAVITS IRRELEVANT.”

His Honour: The position is as 1 have stated it. The affidavits are on file. (To Sir John Findlay): I oon’t stop you reading them, but J cannot consider their evidence, as relevant. Sir JoHn Findlay: 1 am representing a Minister of the Crown; and, if Your Honour says these -affidavits can’t be read, I must accept Your Honour’s ruling. But, I should have thought -that if these affidavits would assist to clear the Minister, the reading of them should be allowed. His Honour: There is no allegation of a charge of bad faith -against- the Minister hut purely charge of a technical offence as bias. I candot allow this inquiry to degenerate inlo a dispute on matters which are certainly, as I think, irrelevant. “AFFIDAVITS MUST NOT BE READ.” Sir John Findlay: All right. Your Honour. But, the reading of those affidavits would have made quite clear tho necessity for the Minister having that power which he claimed under the section. The affidavits would disclose what we consider is very relevant to clear th© Minister; but, having done my beet to discharge my duties, I must with oveny possible respect, defer to Your Honour’s ruling Tho Minister was not guilty of bias or pre-determination. He wanted the inquiry, and ordered the inquiry, so that he could answer his -master (Parliament), and that inquiry ne knew would either absolve Miss Park or would give him the evidence necessary to justify him in his subsequent actions under the regulations administered b> him. Had the Minister for Education not been allowed to administer those regulations, it would have placed him officially in a position most

embarrassing to a Minister of a public office

WHY NOT PUBLIC? H-m Honour: Wag that inquiry intended to be made public? Sir John Findlay: How could it be made public without throwing them open to an action for libel P Mr Myers: Under the circumstances a public inquiry fconld be, of course, improper. His Honour: That is so, unless everybody who attended it wished to be liable to a libel action. (Laughter.! His Honorr said he would reserve his decision.