THE DEFENCE ACT.

Colonist, Volume LIV, Issue 13506, 28 August 1912, Page 6

THE DEFENCE ACT.

AN IMPORTANT JUDGMENT.

ALL INFORMATIONS DISMISSED

At the Magistrate's Court, yesterday, Mr J. B. Evans, S.M., gave his reserved judgment in the prosecutions under the Defence Act" heard at Brightwator recently. In the course of his judgment the Magistrate said:—The charges arose out of breaches of the Defence Act, and the. maim defences:' applied more or less to all the charges, 'though there are subsidiary matters raised on each. The charges were —(1) faling to take the oath of allegiance; and (2) failing without lawful excuse to attend a training camp. The niain defences wore —(1) that the oath required to .be taken by the authorities was not the statutory oath, and the defendants could not be required to take it or be punished for .refusing to take it; (2) that the defendants had not been properly -enrolled in the territorial force; and (3) that the defendants ' were not liable to the penalities of section 51 of the Act. The facts were that those of the defendants who were charged with failing to take the oath were called upon to take tho oath in the personal record book, they were not asked to take the oath proscribed by section 11 of the Act. They refused to take the oath tendered to them. Those of the defendants who were charged with failing to att-ond camp raised various defences, but the two defences set out above applied to all, and if the defence that they were not properly enrolled is sound then the subsidiary defences need not be considered. The charges so far as failing to take the oath were concerned must fail. These men had not been called upon to tako the statutory oath, and could not be compelled to take the one they were called upon to take. The other defences raised more serious serious questions.- The object of the Act was to provide for a. defence"'force, and to determine how that force was to be raised and what its obligations were. The defence force as defined in section 2 consisted of all officers, non-commis-sioned officers, and men in the permanent force, the territorial force, and reserve, and included any rifle club and any volunteer body enrolled in the forces under" the authority of the Governor for special service in and- beyond New Zealand. The territorial force in connection with which these proceedings were taken, consisted of the volunteer force existing at the time of the coming into operation of the Act, and those persons who were transferred from the general training section. Those were the only provisions in the Act for raising a territorial force. In order to provide recruits for the territorial forces universal training was required under part VI. of the Act from all persons between the ago of 18 and 25 years, but service in the territorial force's was only required from those who were transferred from the general training section. Section 35 divided tho period for training, and sections 33 to 46 fixed the training that is required, the divisions being junior cadets, senior cadets, and general training section, the last named being the statutory recruiting ground for the territorial forces. It was provided by an amendment to section 35 that the period of service in the general training section was from 18 years to 25, but this period was to be completed in the territorial i force in the event of a transfer to that force. Section 35 did not fix or deter-, mine the personal . service required either under part VI. or from .person-s transferred from tho general training section to tho territorial force. Immediately a person was transferred from the general training section he ceased to be liable to the training required under part VI., and becamo liable to the training under Bart 111., which differed from that required under part V. There was therefore the defence forces as defined by the Act, and the training sections under part VI.. The territorial force was a statutory body, and the liabilities were popularly referred-to.as compulsory -."military training." The Act not only imposed "compulsory training," but compulsory .service .in.. 1-any .part of New- Zealand; under section-22 of the Act. Hie "duties imposed by the statute therefore, materially affected the liberty of the subject. The penalties imposed for failure to give personal service were drastic, amounting to disfranchisemorit for life. The provisions for making up the complement of this force were to be found in -section 23-, and there only. In order to render a porson liable'either to the service or the penalties the statutory steps for his enrolment must be taken. These steps wore to transfer men from the general training section to make up the complement of the territorial force. This had not been done, in fact there was no general training section established. The practice was to transfer senior cadets directly to the territorial force, notwithstanding section 40 (7), which required that they shall be transferred to the general training section,; and to post direct to tho territorial,force such persons over the .ago of. 18 years who; register /axnder section 45 (pall: VI.). .He. could find no authority for such a course, and it is a direct conflict with the statutory requirements. In his opinion the amendment to s-ection 35 (c) did.not entitle the military authorities to post cadets or persons registered above the age of 18 years direct to tire territorial force. The regulations appeared in some parts to give that power, but if that were intended, then they appeared to be inconsistent with the Act. He held, therefore, that there was no authority for posting any person against his own will direct to the territorial foroey either from the senior cadets or on original registration, and no power was given to make up the complement of the territorial force except out of the general training .section, as provided in section 23. Therefore no person who had been posted to the territorial force,direct or otherwise than under that section was bound to service •-unless he had acquiesced to such posting. If a person had neither taken the bath nor attended drill or camp he ;mig.ht in his opinion object to -the validity :of his enrolment,-andhis, objection would be valid if liehad not been transferred from' the general -.training- section. In the charges against Silccck— (a) with failing to take the oath, and (b) with failing to render personal service, the-evidence showed that defendant had done nothing to acquiesce in his enrolment, and both informations must be dismissed. In Tunnicliff's case, the defence raised was that he was not pron

perly enrolled. Tho defendant had given live years service as a volunteer, and was not hostile to tho Act. He had been excused from attending drill, and had lor several reasons asked to be excused from attending camp. It had been decided that a territorial was liable to the peiialities of section 51, and ho was bound by the decision. In this section, however, he had to consider the words '' without lawful excuse. " If he had to construe the words in their strict sense" then it was extremely doubtful if defendant had a lawful e"x«use. It was well known that many persons openly defied the law in regard to the service under the Act/ and the drastic provision applied equally to those who were willing to give service arid had done so. In his opinion tho Court must discriminate between such persons in considering the excuse offered, but this was a ditticult matter unless "lawful excuse" could be construed as "reasonable excuse." lii view of the severe penalty that would fall on an active and willing territorial for failure to attend drill or camp, the Magistrate held (but not without some doubt) that the words "lawful excuse" must be construed as "reasonable excuse," taking into account the fact that defendant had given five years' service and was willing to serve and -that ho had some >reason to hope that ho would be exempted, also the fact that of his wife's health and.his own responsible position at a mill he thought defendant had established a "reasonable excuse.'^ It' might be otherwise if lie were openly hostile and defiant to the Act. The information would be dismissed. In Coleman's case tho defendant was a volunteer for over eleven years, and he became a member of tho territorial force under Section 20. In his opinion the defendant/ must give the service required of him. In his opinion defendant's exciis^s for failing to attend camps were reasonable and tho information would bo dismissed. In Win's and Day's cases, both were on the same footing, and for the reasons already given that they were not members of the territorial forces. The informations would be dismissed.

Messrs Maginnity and Wise appeared for the defendants, and as the informations were* in the nature of test cases no application was matfe for costs.