VI
Legislative Progress

by H. S. ADAMS, M.A., LL.B.,
Barrister-at-Law, Dunedin

The first legislation in New Zealand relating to the manufacture or sale of intoxicating liquor was the Distillation Prohibition Ordinance, 1841, Session I, Number 5; which prohibited the distillation of spirits save by chemists or druggists for medicinal purposes and under license from the Colonial Treasurer. The Licensing Ordinance of February, 1842, forbade the sale of any quantity less than two gallons of spirits, wine, ale, or beer by any person unless duly licensed. The Justices of the Peace for the district, in general meeting were empowered to grant licenses. Any number of licenses might be granted at the general meeting, and any two Justices, the Police Magistrate being one, might at any time grant any number of licenses in new settlements. The hours of sale were from 6 a.m. to 10 p.m. on working days, and from 1 p.m. to 7 p.m. on Sunday, Christmas Day, and Good Friday. The Justices could grant extensions to 12 p.m. on any working day. These ordinances were mainly for revenue purposes.

The first enactment for the protection of the Maori was passed in 1847. This Act prohibited the sale, supply or gift of spirituous or fermented liquors to any person of the native race.

The old Provincial Councils of the nine Provincial Districts which were abolished in 1875 enacted

J. S. Baxter,
Prominent leader in securing No-License for Invercargill; President Southland Prohibition League

Geo. J. Petherick, J.P.,
14 years Chairman Social Welfare Board; 53 years member I.O.G.T. Grand Lodge Secretary 19 years; 16 years member N.Z.A. Executive

R. G. Denton,
Over twenty years member of Alliance Executive; ex-President Wellington Prohibition League; notable Band of Hope worker

John Nichol.,
One of the founders and first secretary of Wellington Prohibition League. Fifty years member I.O.R. Over 25 years member of N.Z., Alliance Executive

F. Z. D. Ferriman,
Exceptionally vigorous worker in the No-License town of Ashburton

W. T. Lill,
A standard bearer in the fight that brought No-License to Ashburton

C. E. Daniell,
Leader in Masterton No-License campaign

James Mcgregor,
Outstanding leader in the campaign which secured No-License for Masterton. Lifelong temperance and church worker

page 145 numerous ordinances dealing with the licensing question but all these provincial laws were repealed by the Licensing Act, 1881, and it is not necessary for the purposes of this survey to refer to any of them. An experiment was also made in distillation, and under the Acts of the General Assembly two distilleries—in Dunedin and Auckland—were in operation for some years, but ultimately under the Excise Duties Act, 1874, these were bought out by the Government and closed down, a sum of £27,500 being divided between them.

The first attempt to bring the sale of intoxicating liquors under popular control in any part of New Zealand appears to have been made in the ordinance introduced by Mr. Robert J. Creighton in the Auckland Provincial Council in 1871. In the same year a Bill was introduced into Parliament by Mr. Creighton, on the request of Sir William Fox, who had for many years taken a deep interest in the movement and then held the office of Premier. In introducing the Bill Mr. Creighton informed the House that it had been prepared by Sir William, who, he added, deserved the thanks of the House and country; and from this it would appear that Sir William Fox was the real author of the Auckland Ordinance. The Bill proposed to take the power of granting licenses out of the hands of the J.P.s, who had abused it, and to vest it in the resident magistrate in each district. The magistrate was to exercise his discretion in granting or refusing any certificate and was not to be obliged to grant it, unless, in his opinion, there was a necessity for the public house or other establishment for the sale of intoxicating liquors for which application was made. The applicant was to be required to produce a memorial in favour of his page 146 application signed by at least one-third of the residents in the district entitled to vote. Any twenty persons entitled to vote might ask for a poll, and if on such a poll two-thirds of the male and female inhabitants of the district voted in favour of that proposition, no public house could be licensed in that district. This was to apply to renewals of, as well as first applications for, licenses. Complete machinery for taking the poll was provided. The Bill passed its second reading but later was discharged from the order paper.

The Auckland Provincial Council passed the ordinance to which reference has been made, but struck out the machinery clauses providing for taking the vote, and other clauses, the excision of which rendered the law abortive. In the following year Mr. Creighton re-introduced into the House the Bill prepared by Sir William Fox. It was considered in committee, but after several divisions had been taken it was resolved that the committee sit again. The Fox ministry, however, went out of office in October, and the Bill was withdrawn. It was re-introduced by Sir William in the next session and finally became the Licensing Act, 1873, but as happened in Auckland, it emerged in an emasculated form and proved of no practical value as a measure of popular reform. Its real value lies in the fact that the J.P.'s were deprived of their misused powers and the principle of popular control or Prohibition of the liquor traffic was written into the statute law for the first time in New Zealand.

A Local Option Bill was introduced into the House by Sir Robert Stout in 1875 and 1876, but the law remained unaltered until 1881, when the Licensing Act, 1881, introduced by the Hon. Thomas Dick, then Colonial Treasurer and page 147 Minister of Education and Justice, was passed. Although disappointing in respect of its partial failure to give effect to the principle established in 1873, this Act registered a considerable practical advance upon the prior legislation. Under its provisions licensing districts were created consisting of (1) undivided boroughs, (2) wards of divided boroughs, (3) ridings of counties. Provision was made for licensing committees comprising the resident magistrate and five members elected annually by the ratepayers of the district. Seven classes of licenses were grantable by the committees—(1) Publicans'; (2) New Zealand Wine; (3) Accommodation; (4) Bottle; (5) Packet; (6) Wholesale; (7) Conditional. No new Publicans', New Zealand Wine, Accommodation, or Bottle licenses, for premises in respect of which no such license was in force on October 1, 1881, could be granted until the ratepayers had determined by majority vote whether the number of such licenses might be increased, and provision was made for taking a poll of the ratepayers in any district for this purpose. Any ten or more ratepayers might object by petition to the granting or renewal of any such license, and any adult male or female resident or residents in the neighbourhood of the premises in respect of which a license was sought, whether on new application or by renewal, might object to such grant or renewal, personally without notice. Objection to the grant of a new license might be made on the ground of unfitness of the applicant, or the premises, or on the ground that the license was not required in the neighbourhood, or that the premises were in the neighbourhood of a place of public worship, hospital or school, or that the quiet of a neighbourhood would be disturbed if a license were granted. page 148 The renewal of any license might in like manner be opposed on grounds personal to the applicant, or on the ground that ‘the license was not required in the neighbourhood, or that the quiet of the locality would be disturbed.’ The licensing committee was also given a general discretion to grant or refuse any application for any description of license unless in the committee's opinion there was a necessity for the license.

The Act required that all licensed premises should be closed during the whole of Sunday, Christmas Day, and Good Friday, and from 10 p.m. until the following 6 a.m. on other days, with power to the committee to alter the hour of closing to midnight on ordinary week-days. It also contained a comprehensive penal code designed to secure the regulation of the Trade, including the issue of Prohibition orders; and the provision of adequate accommodation for the public. Clubs providing their own liquor, but not for purposes of gain, were required to obtain a charter from the Colonial Secretary, revocable on failure to comply with the prescribed conditions. The Act proved to be a more flexible instrument of reform than was expected. By a series of decisions in the courts it was ultimately settled that, provided the committee heard and determined each application on the merits and in accordance with law it was not bound to grant a renewal of any license. These decisions cleared the way for a local committee, acting in accordance with the law, without pre-determination and after hearing the parties, to refuse each application at the annual meeting, and so abolish the legal sale of liquor in its district. That was done in Roslyn, a suburb of Dunedin, in 1891, and the action of the committee was upheld by the judge- page 149 ment of Sir Joshua Williams in Heffernan v. Begg and Others (1892).

The Triennial Licensing Committees Act, 1889, provided for elections of committees every three years instead of annually, and gave power to the Governor to remove any member of a committee from office. In the same year a resolution was passed by the House by thirty-six votes against twenty-six that ‘it is, in the opinion of this House, imperative that the Government should, without delay, introduce a Bill giving power to the people, by direct vote at the ballot box, periodically taken, to prohibit the sale of intoxicating liquors.’

The Direct Veto Bill, which had been introduced by Sir Robert Stout into the House on previous occasions, was read a first time on June 29, 1893. Another Bill was introduced by Sir Robert later in the session. Both Bills provided for a vote of the people by bare majority. On the second reading the Premier, the Right Hon. R. J. Seddon, said that if the House approved it generally the Government would bring in a Bill to deal with the question. The Alcoholic Liquors Sale Control Bill was accordingly introduced by Mr. Seddon in 1893 and became law. By this Act the old Licensing Districts were abolished, and each electoral district was constituted a Licensing District; the resident magistrate and eight persons resident in the district, to be elected by the electors on the Parliamentary roll of the district, constituted the licensing committee to hold office for three years; disputed elections were still to be determined under the Regulation of Local Elections Act, 1876. The fact that a member of the committee had at any time before or after his election, expressed his views or opinions, or given any pledge, was not to disqualify him or to page 150 render any decision or act of the committee liable to be questioned. The number of licenses in the district could not be increased except that where there was a sudden large increase of population in a county riding the Governor by Order in Council might, on petition, grant authority; and where the population of a district had increased by twenty-five per cent. since the previous census, a poll of the electors might be taken to determine whether an increased number should be granted. No publican's accommodation, or bottle license was to be renewed until the electors had determined (1) whether the present number should continue; (2) whether the number should be reduced; (3) whether any licenses should be granted. Every elector on the roll was to have a vote and the determination in each case bound the committee. An absolute majority was sufficient to determine the first and second proposals. A majority of three-fifths of the votes recorded was required to carry No-License, but if No-License was not carried the votes for that issue were added to the votes for reduction. If reduction were carried the committee could reduce the number of licenses by one-fourth. Club licenses were brought within the ‘No-License’ vote. The poll was to be taken every third year on a day fixed by the returning Officer. It was, however to be invalid if less than half the electors on the roll voted, and this provision invalidated most of the polls throughout the country owing to the tactics employed. No-License was, however, carried in the district of Clutha (Otago) in 1894. At that election women for the first time voted at the Parliamentary election and licensing polls. The difficulties created by the Regulation of Local Elections Act continued to defeat the result of the page 151 polls, until 1904, when the Local Elections Act was passed. In the Chalmers district the magistrate held the poll of 1902 void because one polling booth was open for ninety seconds too long by the deputy returning officer's watch.

The last mentioned Act was amended in 1895, but the polls were still liable to be declared invalid under the Regulation of Local Elections Act of 1876. The principal amendments were (1) the vote for No-License to apply to licenses of every desscription; (2) the No-License poll to be taken in every district on the day of the General Election of members of the House of Representatives; (3) if in any district no electoral poll was required and less than one-half of the electors voted at the Licensing poll, the poll to be void; (4) if Parliament dissolved within two years no licensing poll to be taken at the ensuing election.

The Licensing Poll Regulation Act, 1899, provided for scrutineers at licensing polls. The Licensing Committees and Polls Act, 1902, provided for a recount of the votes at a disputed poll. The most important provisions of the Licensing Amendment Act, 1904, were the prohibition (1) of the manufacture, distillation, or sale of alcoholic liquors in the Cook and other Islands; (2) of the grant of new wholesale licenses in a borough or town district in which there were no publican's licenses; and (3) of removal of a publican's or accommodation license to any premises beyond the borough or ward, or the riding in which the licensed premises were situated; or to any premises more than half a mile distant, in a borough, or one mile in a county, from the licensed premises.

The whole law was consolidated in the Licensing page 152 Act, 1908, which, with its amendments, constitutes the law at the present time.

The third stage in the legislative evolution was introduced by the Licensing Amendment Act, 1910. By that Act the reduction issue was eliminated; the three-fifths majority required to carry No-License was retained; and provision was made for submitting a new issue for National Prohibition upon a three-fifths majority, to come into force four years after the poll; and thereafter for recurrent triennial polls for restoration if that issue were carried. Under this Act, if National Prohibition came into effect, it was made unlawful to import, manufacture, sell or have in possession for sale intoxicating liquor of any description. No efficient machinery was provided to enforce the prohibition. Bottle licenses were abolished by this Act, and it was made an offence to supply liquor for consumption on the licensed premises to any person under twenty-one. The power to extend the hours of sale beyond 10 p.m. was repealed.

Under the Amendment Act of 1914, any person upon obtaining a license from a magistrate, may make wine from any fruit grown in New Zealand (other than apples or pears) in quantities of not less than two gallons, such wine not to be consumed on the premises or at the place specified for delivery. The wine may be of any strength up to forty per cent. proof spirit. By section twelve of the Distillation Act, 1908, the Minister of Customs may grant to a winemaker a license to distil spirits for the purpose of fortifying wines produced or manufactured on his own vineyard.

Breweries are now regulated under the Finance Acts, 1915 and 1917, and Sections 146 and 147 Licensing Act, 1908. Licenses are granted by the page 153 Collector of Customs with approval of the Minister which is not to be given for a brewery within, or within five miles of the boundary of, a No-License district, and a brewer must not use for storing beer any building or place in the above limits and not forming part of a brewery or a bottling warehouse in use before No-License was carried in the district. ‘Hop beer’ licenses are grantable by the Commissioner of Customs. Hop beer may contain up to three per cent. of spirit.

In 1917 the Sale of Liquor Restriction Act was passed as a war measure. The time of legal sale was reduced to the period between 9 a.m. and 6 p.m. The statute was to remain in force only for the duration of the war with Germany and for six months thereafter, but this limitation was repealed by Section two of the Act of 1918, and consequently the above-mentioned restriction of the hours of sale remains in force. This restriction is commonly known as ‘six o'clock closing.’

The Amendment Act of 1918 provided for a special poll to be taken before April 30, 1919, on a proposal for National Prohibition with compensation to be determined by a bare majority vote, and in the event of this not being carried, for the succeeding polls to be taken on three issues (1) National Continuance; (2) State Purchase and Control; (3) National Prohibition without compensation, a majority of all the votes passed being required to carry (2) or (3). National Prohibition with compensation was not carried at the special poll in April 1919, and the above three proposals are now the proposals to be submitted to the electors, unless and until National Prohibition or State Purchase and Control is carried. If National Prohibition is carried it is to come into force on page 154 the following June 30, and no licensing poll is to be taken thereafter. If State Purchase is carried the Trade is to be carried on by the State, and the profits are to go to the consolidated fund, and compensation is to be paid to the brewers, licensees, and persons interested. Thereafter, at each general election two questions, (1) State Purchase and Control, (2) National Prohibition, are to be submitted to the electors and decided on a majority vote.

At every licensing poll a proposal for restoration of license is submitted to the electors of each No-License district, three-fifths being required to carry restoration. The districts which have already carried No-License and to which this applies are the following: Clutha, Eden, Grey Lynn, Invercargill, Masterton, Mataura, Oamaru, Roskill, Wellington South, Wellington Suburbs.

Auckland Suburbs and Wellington East are No-License districts created by change in electoral boundaries, and while, as a whole, these electorates have not carried No-License by popular vote, the Restoration poll takes place and if carried would involve the possible return of any licenses in the new electorate which had been suppressed by a previous vote.