SIX O'CLOCK CLOSING.

Sun (Christchurch), Volume VI, Issue 1628, 3 May 1919, Page 11

SIX O'CLOCK CLOSING.

WHEN DOES IT CEASE?

INTERESTING CONTROVERSY.

POSSIBLE FLAW IN THE ACT.

If the contentions of certain lawyers are sound, 6 o'clock closing of hotels will cease when Peace with the Central Powers is signed, and the hotels and chartered clubs will then be able to revert to the pre-war hours for the sale of liquor—6 a.m. to 10 p.m. .

The contentions are based on the facts that the Act which restricted the sale of liquor to the period between the hours of 9 a.m. and 6 p.' was intended to be in force only for the continuance of the war and simonths thereafter, and that the section of the Licensing Amendment Act, 19J8, which repealed the provision in the Sale of Liouor Restriction Act, 1917, limiting the operation ©f the latter, did not repeal the time limit mentioned elsewhere in the Act. In short, it is contended that the Sale of Liquor Restriction Act ceases to be in force when Peace is signed. A Significant Preamble. In the preamble, the Sale of Liquor Restriction Act. which was passed in October, 1917, is described as "an Act to restrict 'the hours within which intoxicating liquor may be sold in licensed premises during the continuance of the war." Section 3 states that the hotels are to be closed between 6 p.m. and 9 a.m. on December 1, 1917, "and thereafter while this Act remains in force." Section 12 of the Act continued the operation of the Act beyond the end of the war. It was as follows: "This Act shall remain in force during the continuance of the nresent war with Germany and for six months thereafter, and no longer." Section 12, however, was repealed. At the end of the debate in Committee on the second reading of the Licensing Amendment Bill, in the House of Representatives on Decemher 3,l9lß—the Bill which provider 1 for the taking of the special licensing poll which is just past—Mr C. Wilkinson (Egmont) moved a clause to repeal section 12 of the Sale of Liquor Restriction Act, 1917. The second reading of Mr Wilkinson's clause was carried on the casting yote of the chairman, Mr A. S. Malcolm, the voting having been 27 o< each side. When the Committee divided on the question. "That tb clause be added to the Bill." the Hon.

J. A. Hanan, who had been absent from, the second reading division, voted amongst the "Ayes,", and the motion- to add the clause was

carried by 28 votes to 27So It came about that section 2 of the Licensing Amendment Act, 1918, saws, "Section 12 of the Sale of Liquor Restriction Act, 1917, is herc'by repealed." But the preamble to ' the latter Act was not altered, and t that is the point on which hinges the contentions now discussed. The Common Law Aspect.

It was contended by one solicitor

having a considerable experience in licensing legislation that under the circumstances the preamble to the Sale of Liquor Restriction Act, 1917, would apply in common law, and therefore the Act was in force only for the continuance of the war. This opinion was based on Halsbury's "Laws of England," vol. 27, p. 133, par. 238, which was as follows: *'lt is convenient to consider for purposes of interpretation in the following matters . . . the whole Statute, Including the non-enacting constituent parts, which, according to the . rules before laid down, may be referred to for the purpose of ascertaining the scape and meaning, and, having thus examined a Statute as a Bclf-contained entity, to point out what recourse has been had to external matters when interpretation from within lias failed." If the question were the subject of litigation, the Court might point out* said this solicitor,-what was the object of the repeal of section.l2 of the 1917 Act. In ascertaining intention, the Court would not be entitled to consult the records of the debates In Parliament or to take evidence on that point. Much could possibly be said on either side, but there seemed sufficient grounds to justify the argument that .6 o'clock closing could ' cease with the signing of Peace.

Statutory Provisions. Another .solicitor, prominent in licensing and sporting cases, said that the Act in question was'origin-

»Hy intended as an emergency one. . He considered that the statement in ; the preamble as to how long 6 o'clock closing was to continue—i.e., "for the ! duration of the war"—now formed ! part of the operative clauses of the . Act. The Acts Interpretation Act, l> 1908,' was quite clear on the point. !' It stated:—"The preamble of every ! Act shall be deemed to be part there- ;; of, intended to assist in explaining 1 the purpose of such Act/' In section 3 of the 1017 Act the marginal reference was:—"Fixing hours of closing of licensed premises during continuance of war." This also made no reference to the "six months thereafter" in section 12, ■which might be held to be the object aimed at in repealing section 12. However, he would admit that the

marginal note could ndt be claimed as an operative part of an Act. A Contrary Opinion.

Mr S. G. Raymond, K.C., to whom the question was submitted, expressed an opposite view. "Whenever an ambiguity exists in, a Statute itself," he stated, "the preamble can be called in aid, for the purpose of explaining the ambiguity. The preamble would only be called into aid where an ambiguity exists. In this case there has been a deliberate repeal of section 12, with the object of removing the limit of time. This gives rise to no ambiguity, so that there is no question of the preamble being called upon." Mr Raymond added that the previous quotations on the law on the subject support this view.

Asked if there were ever instances | of an operative clause being found in the preamble, Mr Raymond replied that this was never experienced. The preamble sometimes gave assistance in the interpretation of an ambiguity. The position was analogous to what was known as the "testator's armchair will." In the interpretation of a will, the Court would often put itself as far as possible in the testator's place and endeavour to arrive at his intention by the surrounding circumstances, letters, etc., although they were not considered as part of the will.