The effects of alcoholic liquor and its potentialities for abuse have led many countries to control its sale and consumption, and (mainly in English-speaking lands) there have been efforts to have its manufacture and sale prohibited altogether. In modern times in New Zealand every Government, whatever its political philosophy, has recognised that liquor cannot be treated as an ordinary article of commerce.
The sale, supply, and consumption of liquor are governed principally by the Sale of Liquor Act of 1962, which revised and restated the law and marked the culmination of reforms made in 1960 and 1961. The new legislation continues and, in some respects, tightens the close control of the liquor trade that has characterised our law for many years, and it has left some anomalies and illiberal features. It may be said, however, to have ended an era when the liquor laws were a reaction to frontier conditions and mirrored the social and moral attitudes of a small-town colonial community.
New Zealand's licensing laws have been frequently derided. An informed judgment on them is, however, impossible without some understanding of the conditions which gave rise to them, and the mores, ideals, and prejudices of the society in which they were enacted. The pre-1962 law was essentially enacted between 1881 and 1918. Its substance was originally in reasonable harmony with public opinion and social habits. The criticism that can be made is that the resistance of extremists and the fears of successive Governments allowed the legislation to become increasingly chaotic in form and delayed changes of substance too long after the law had become divorced from social facts and responsible opinion.
A licensing ordinance was passed in 1842, but for the first 40 years of the colony's history there was no effective restriction on the number of liquor outlets and virtually no control over the conditions in which liquor was sold. During this period and until the First World War, public drunkenness was much more common than it is today. In 1870, for example, drunkenness convictions were 16·7 per 1,000 of the population; in 1890, 9·1; and in 1910, 117; compared with an average of 2·0 for the years 1958–60.
Given the amount of excessive drinking and the grave social and moral evils that it produced, the influence of evangelical religion and social reform made the growth of a strong temperance and prohibition movement inevitable. The cause took on the fervour of a moral crusade. Led by some of the Protestant Churches, which placed great emphasis on the sin of drunkenness, it also appealed to many radicals and humanitarians who were aware of the harm drink did to the working man, his family, and his interests. It was no accident that Sir Robert Stout, a liberal and an agnostic, was a prominent prohibitionist. Nor is it surprising that the Women's Suffrage Movement was closely associated with the anti-liquor forces.
The Licensing Act of 1881 succeeded for the first time in comprehensively regulating and controlling the liquor trade and in stopping increases in the number of licences. From 1881 to 1918 the theme was increasing restriction. For many years it seemed that the process would end in national prohibition. The high-water marks were the polls of 1911, when 55·82 per cent of the voters supported prohibition (a majority of 60 per cent being required), and December 1919, when prohibition failed to secure the majority it needed by only 3,263 votes.
At first those opposed to the sale of liquor fought for an effective local option poll. This was secured in 1893, when provision was made for a triennial poll in districts corresponding to parliamentary electoral districts on the issues of continuance, reduction, and no licence. The majority required to carry no licence was 60 per cent. The prohibition forces, led by the New Zealand Alliance, sought unsuccessfully to have local option and, later, national prohibition decided by a bare majority. Despite the handicap, 12 out of 76 districts had carried no licence by 1908. Others had from time to time carried reduction, which was effected under the supervision of elected licensing committees. Publicans and accommodation licences in force decreased from 1,719 in 1894 to 1,257 in 1910, although the population had increased substantially.
The reduction issue was abolished in 1910. Local option polls were replaced in 1918 by a periodic nation-wide vote on the issues of continuance, State purchase and control, and prohibition, a vote that is still taken. Areas that had carried no licence were, however, to remain “dry” until a 60 per cent majority had voted for the restoration of liquor sales. Seven such districts remain, all in the suburbs of Auckland and Wellington.
The appeal of prohibition diminished after 1919. In 1925 over 47 per cent of the voters still favoured it. By 1935 the figure had sunk to 30 per cent, and there has since been a slow decline to 20 per cent in 1963. Despite this, there were no changes in the law from 1918 to 1944. When amendments did come they were mostly related to the machinery of control, rather than the substance of the law.
Following the carrying of restoration in Invercargill in 1943, legislation was passed for the public control of the liquor trade in that city through a licensing trust originally nominated, but elected since 1950. The experiment was successful and further legislation in 1947 and 1949 led to the setting up by popular vote of trust control in other former no-licence districts. In trust districts there are no licences and, broadly speaking, the trust itself decides what premises for the sale of liquor will be established and where they will be. Provision was also made for what are known as local trusts to operate individual new licences. Mainly for financial reasons these trusts have made little headway, and only two have established hotels.
Between 1910 and 1949 the number of hotels slowly decreased. Moreover, their distribution remained unchanged, reflecting the demographic conditions of 1881. Partly to provide a means to remedy this maldistribution and partly to improve standards and enforce licensees' legal obligations, a central authority, the Licensing Control Commission, was established in 1948. At the same time provision was made for a modest increase in the number of licences, the first in nearly 70 years. A number of other useful improvements were made. Many of the new provisions were the result of recommendations of a Royal Commission, whose report in 1946 exhaustively analysed the law and the operations of the liquor trade. The Royal Commission's principal proposals, which were of a radical nature, were, however, rejected.
The present machinery for the control of the liquor trade outside licensing-trust districts is a mixture of central and local authority. The central body is the Licensing Control Commission. At a local level control is exercised through 22 licensing committees comprising a Magistrate as chairman and four members elected (except in the Chatham Islands) by the territorial local authorities. An appeal lies from the committees to the Supreme Court in some cases and to the Commission in all others, and from certain decisions of the Commission to the Supreme Court. The Commission decides what new licensed hotels, tourist houses, taverns, restaurants, and wholesale facilities are needed, fixes the standards to be complied with, and authorises the issue of the appropriate licence. In the case of a hotel or tavern, a poll of the residents of the locality may be demanded to decide whether the new licence is wanted. The Commission also grants charters to clubs authorising them to sell liquor to their members. A temporary but important function is to review all present licensed hotels and decide whether they should continue to be hotels or become taverns providing only drinking facilities. If it is decided that they are to be hotels they must provide the quantity and quality of accommodation required by the Commission. The Commission has a concurrent jurisdiction with the committees to prescribe and enforce standards. Committees grant licences to conduct business on premises licensed as hotels, tourist houses, and taverns and grant several minor licences – winemakers', wine resellers', ship, and booth licences. They renew and transfer licences.
Licences in force or authorised at 1 April 1965 included 1,102 hotel premises (including provisional hotel premises), 36 tourist-house premises, 38 restaurant, 169 wholesale, and 241 wine resellers' licences. There are four tavern and 13 (nine in Taranaki) tavern premises licences. At the same date there were 194 club charters, 72 of which (mostly older ones) authorise the sale of liquor for drinking off, as well as on, the premises.
The principles on which the liquor law of New Zealand rests are the necessity for anyone selling liquor to hold a licence, strict limitation of the number of licences (although there is no longer a fixed maximum), restriction of selling hours, and close regulation of the conduct of the trade and of the standard of accommodation, amenities, and services.
New Zealand differs from most countries in that the sale of liquor for drinking on the premises is to a considerable degree tied to the provision of accommodation on those premises. This tie was formerly even closer. With the introduction of restaurant and tavern licences it can no longer be regarded as a general principle of the law. Nevertheless, the Commission is obliged, in authorising new licences and reviewing existing ones, to have first regard to the need for accommodation in the particular locality and not to approve a tavern without taking into account its likely effect on accommodation hotels.
Another illustration of the favoured position of the hotel is the policy adopted towards wholesale licences. Except for New Zealand wine, no bottle licences exist in this country. But holders of wholesale licences may sell to the public in quantities of not less than 2 gallons, and many do so extensively. This is thought to have an adverse effect on the provision of accommodation. Consequently, the policy of the law is to see that new wholesale licences are issued only sparingly.
A striking feature and a significant indication of prevailing attitudes was the former legal dissociation of drinking from dancing and entertainment. Dancing and entertainment were forbidden on any premises where liquor might be sold. Public concern over abuses led in 1939 to the prohibition of drinking at or near any dance other than a purely private one. The wide scope of this prohibition so conflicted with the customs of a large section that the law became a farce and was modified in 1960. Relaxations have also been made, the effect of which is to allow dancing by hotel guests and, with the Commission's approval, dancing in restaurants and dancing and entertainments in hotels. No provision is made for the sale of liquor at a place of entertainment or a cabaret.
The subject of hours of sale currently attracts more attention in New Zealand than any other part of the liquor laws. In 1842 hours were fixed at 6 a.m. to 10 p.m. on weekdays and 1 p.m. to 7 p.m. on Sundays. The licensing Justices could grant an extension to midnight on weekdays. Sunday opening has been prohibited since 1881, an exception in favour of bona fide travellers being removed in 1904. The midnight extension was altered to 11 p.m. in 1893 and abolished in 1910. Six o'clock closing, which was introduced as a war measure in 1917, was made permanent in 1918. The present hours of sale to the public are from 9 a.m. to 6 p.m. Hours of sale to persons genuinely staying at a hotel have never been restricted.
Although it did not apply to liquor with meals, and liquor may now be drunk by diners in hotels and restaurants until midnight, six o'clock closing remains a prominent feature of New Zealand's social life. In rural districts many workers have little opportunity to drink before six, and in places the law is widely disregarded. Everywhere a substantial section resents six o'clock closing. On the other hand, a referendum in 1949 decisively rejected a change in hours, and it is probable that a majority is still opposed to evening hours. The problem is complicated in the larger cities by the concentration of drinking places in the inner commercial area. For the present, the dilemma seems insoluble.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.