TODAY'S PROCEEDINGS

Evening Post, Volume CXV, Issue 74, 29 March 1933, Page 9

TODAY'S PROCEEDINGS

VALIDITY OF AUTHORITY

The Board of Trade Act and the Cinematograph Films Regulations made under it were discussed by the Court of Appeal again today, when the Solicitor-General, Mr. A. Fair, K.C., enlarged his submissions that powers given to tho Governor-General in Council by the Bonrd of Trade Act were extraordinarily wide and almost unlimited.

The Solicitor-General ia appearing for the chief inspector under the Cinematograph Films Act, Hoy Maltby Girling-Buteher, who is the 'defendant in an application for a writ oV mandamus to issue a picture theatre licence to Robert James' Kerritlgo i" respect of .a picture theatre it is proposed to build in Eotorua. Acting on .instructions from the. Minister of Industries and Commerce, the inspector had refused to issue a licence, and the plaintiff claims that the authority for this refusal, the Board of Trado (Cinematograph Films) Regulations, is invalid as being made without statutory authority. Briefly, the point the Court is asked to decide is whether the Gov-ernor-General in Council, acting on the advice of the .Minister of Industries and Commerce, had the power to make regulations under the provisions of the Board of Trade Act.

The Chief Justice (Sir Michael Myers), Mr. Justice Reed, Mr. Justice AlaeGregor, Mr. Justice Ostler, and Mr. Justice Smith are on the Beimii Mr. P. C. Spratt, with Mr. A. E. Hurley, appears for the plaintiff, Kerridge. POSITION IN OTHER COUNTRIES.

■Continuing his argument, Mr. Fair submitted that tho power of regulation and control of industry vested" hi the Governor-General in Council by the Board of Trade Act was comprehensive and not subject to any review, Mr. Justice Smith: Are there ~-another Acts similar to this —in British countries at any rate? ■

Mr. Fair; y cg> j u Australia - there is a-somewhat similar Act, and in the United States there is a, commission permanently sitting to hoar complaints of unfair trading, price-cutting, and similar matters.

The Chief Justice: That all goes to the method of competition. Mr. Justice Smith: A power like this could be used to control banking just as the President of the United States wishes to control banking there. Mr. Fair: Yes.

The Solicitor-General added that the' Act was originally passed to deal with questions which the Legislature knew required dealing with at thnt time, and apparently it was thought there might be other matters which would require dealing with in the future in a similar manner, so it was decided to give the Governor-General in Council the widest possible powers.

The Chief Justice: If you are right, you could make a regulation'providing that no wheat should be grown except

in a particular locality, say, Southland or Otago. Mr. Fair: It may well be. It gives tha Governor-General power over the vliolo of industry. The Chief Justice: "Well, and in a place like Canterbury which has been growing wheat for years, the people would have to give over growing wheat? Mr. Fair: Yes, sir, but the people of Canterbury would have their remedy because they would raise such a protest that the matter would come before Parliament; •■ ■ The Chief Justice: And I suppose it could go thus far,- that the dairy industry being in certain difficulties" just now—producing too —the Gov-ernor-General in Council could say that certain parts of Taranaki should produce no more. Mr. Fair: It might go that far, and, of course, that is the power bciii" sought in the United States at present in respect to wheat-growing areas. The Chief Justice: I can quite understand your answer. You say Parliament has chosen to give this power and, of course, we have to determine whether this power is as you say or whether there is some limit to it. - QUESTION OF MONOPOLY. Mr. Fair then went on to discuss Cinematograph Films Regulations, and Mr. Justice Smith asked what would happen if regulations made under tho Act had the effect of creating a monopoly. Mr. Fair submitted that regulations would not do that. If they did, it would be a very unfortunate result. Mr. Justice Ostler: Why do you say these regulations do not create a monopoly in the picture business in Hotorua'! Mr. Fair: It leaves the existing business in Eotorua without competition, but there is no guarantee that that state of affairs will continue. . . . Tha Minister has to be satisfied that, the public want is being satisfied. Mr. Justice Ostler: Ho has gdt to be satisfied tho monopoly is satisfying the public want, and if ho is satisfied there is a perpetual .monopoly. .: . . He perpetuates it so long as he refuses to grant another licence. Mr.-Fair said the Act ' was . not directed against all monopolies whether beneficent or maleficent, but only against those monopolies prejudicial to the industry of New Zealand. If one theatre was already there fulfilling tho public want adequately and the Minister was of the opinion that anothep one would result in neither of them paying their way, then he could refuse \ a licence. No- man, who was refused a licence un-justly would remain silent. • The Chief Justice: He didn't Temain silent, but, according to you,' he has no redress in this Court. Mr. Fair: That is so. I say the Court has no power to review the Minister's action. Mr. Justice Ostler: "And no redress in Parliament unless he has sufficient influence. ... ; TO PREVENT "RACKETEERING." Mr. Fair added that what tile regulations endeavoured to- prevent was what was known in America as "racketeering," that was, profit-sharing under the threat of entering into competition. The Chief Justice remarked that regulations could be framed to meet that difficulty. Eegulations, for instance, could be made saying what kind of contracts could be entered into 'between tho different sections of the trade. Mr. Fair: It is-almost impossible. The Chief JuStico: I know it is difficult, but it could be done. Mr. Fair replied that, the GovernorGeneral in Council had a choico of methods and he had chosen tho present one. Jlr. Justice Smith observed that one of the essential effects of the rcgula-: tions was that a man had bceu stopped from entering • business. The phort title of the Board of Trade- "Act had theiwords "for the maintenance and control of industry." Was there anything in the Act to stop a person entering business? Ho could be made to observe certain conditions, but was there anything to prohibit him entirely? Mr. Fair submitted that there was, and went on to say that tho Act did not- give the power to totally prohibit the carrying on of an industry, and, secondly, it might- not. give the power to destroy existing rights or, property. The Chief Justico: If it gives any prohibitory, power, why should the Governor-General in Council not. say, '' Such-and-such an industry is inimical to tho economic wclfaro of New Zealand and therefore it will have to close down?" • '. Mr. Fair: Because that would be legislation of . a retrospective effect, and there would have to be^ special words covering that. ' The Chief Justice: Well, you : could extinguish every industry but one in New. Zealand. / » Mr. Fair: .%t possibly goes that far. OBJECT. The primary object of the regulations, the Solicitor-General went on, was to protect independent exhibitors who were cither going to be threatened by big companies or who were going to have their bread and'butter taken away from them by. the erection of another theatre in a place where both (jould not make a living. The application for a licorice was merely incidental to a regulation framed for tho economic welfare of exhibitors. - Mr. Fair contended that thore 'was nothing conflicting or repugnant about the regulations and the Cinematograph Films Act. Every man had a right to exhibit pictnres by common law, but section 32 of the Cinematograph Films Act required him to takeout a licence. The licence was a condition for the carrying on of his trade, nnd all the regulations, -did was to impose a further condition upon him. After hearing Mr. Spratt in reply, the Court reserved its decision. • "'