This amendment in this form rather surprised me. I wonder if the Minister is really in favour of it in the form in which it is drafted, if my reading of it is correct. I understood from the Minister that it was his intention to provide a right for any person manufacturing a commodity, at any rate for sale to the public, that he would have the right to receive a licence, and that the only question in dispute would be between that person and the Minister, as to whether in fact he was really manufacturing at the time. If that was the intention, then it was quite right to provide that the High Court should decide whether he was really manufacturing or not. The amendment seems to me to create a principle which I do not think exists in any previous legislation, and which I would not like to have adopted, although I do not oppose it in this form without further consideration. It seems to me that the High Court could virtually decide what the policy of the Department is. Clause (b) says:
The High Court, if it is satisfied that such applicant was so manufacturing such reserved commodity as aforesaid and that having regard to all the circumstances of the case it is just and equitable that such licence should be granted to such applicant, may make a declaration that such licence should be granted...
That is a matter of fact which the High Court could decide between the applicant and the Minister, if there was a dispute. But having so decided, they might then go into what is a matter of Government policy, and decide whether such applicant should have a licence. So far that is a matter for the Minister or for the Government. Here the High Court, without any indication of what policy they are adopting in principle, or what would be regarded as just and equitable, could conceivably say to an applicant manufacturing in a small way that the Government had created such and such a commodity a reserved commodity. They might say: "We do not like him, because we do not think him financially strong enough, or we do not like his way of business, and, therefore, we do not think he ought to get a licence in addition to the new firm." I do not like the High Court being placed in that position. I would like to confine the High Court to an interpretation of fact or law. That would be the better way. As this section is only expected to affect very few, if any, cases, it would be better to leave it so that if anyone was manufacturing at the time, and wanted a licence, he was entitled to it. Let the High Court decide whether in fact he was manufacturing or not. I would be prepared to go further, and to say that he was manufacturing for sale to the public. I would not give this right to anyone manufacturing in his own home or for experimental purposes, but I would like to safeguard the position of anyone manufacturing for sale to the public. I suggest to the Minister that it would be wiser to leave the section as it was, having regard to all the circumstances.
This amendment is introducing a new principle. In the Industrial and Commercial Property Act there is a somewhat similar appeal to the High Court, but, in that case, the principle upon which the High Court would decide is whether it was just and equitable. This does not seem to be an exact parallel. I do not know of any other case where the High Court would decide what would be a matter of Departmental policy. Whilst something should be there in order to allay apprehension, and while I do not oppose the amendment, I question if it is wise to include these words and to let the High Court decide whether a person was a manufacturer or not. I also suggest that the words "for sale to the public" might be a wise safeguard. While the amendment does not harm, we should realise that it is not an absolute safeguard. There is not the slightest doubt that anyone manufacturing in a small way will be in a pretty helpless position against the position of a large firm manufacturing for the whole country if the Government creates a commodity a reserved commodity. While it is better that some amendment should be introduced, I ask the Minister carefully to consider the effects of it.