Farey v Burvett
| Farey v Burvett | |
|---|---|
 |
|
| Court | High Court of Australia |
| Decided | 8 June 1916 |
| Citation(s) | [1916] HCA 36, (1916) 21 CLR 433 |
| Case opinions | |
| (5:2) The defence powers of the Commonwealth were sufficient to permit the Governor-General to make regulations and orders fixing the maximum price for bread.per Griffith CJ, Barton, Isaacs, Higgins & Powers JJ. | |
| Court membership | |
| Judge(s) sitting | Griffith CJ, Barton, Isaacs, Higgins Gavan Duffy, Powers & Rich JJ |
Farey v Burvett, is an early High Court of Australia case concerning the extent of the defence power of the Commonwealth. The majority of the Court took an expansive view of the defence power in a time of war, holding that the defence power extended to fixing the maximum price for bread. The Court adopted a different approach to the interpretation of the defence power which emphasised the purpose of the legislation, the defence of Australia, rather than the subject matter. As the law fell within a Commonwealth power, whether the law was necessary or appropriate for the defence of Australia was a matter for Parliament.
The Constitution deals with defence in a number of related provisions, relevantly providing that :
51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force ...
The effect of these provisions is that the defence power is exclusive to the Commonwealth.
In October 1914 the Australian Parliament enacted the War Precautions Act 1914 which authorised the Governor-General to "make regulations for securing the public safety and the defence of the Commonwealth, and for conferring such powers and imposing such duties as he thinks fit, with reference thereto, upon the Naval Board and the Military Board and the members of the Naval and Military Forces of the Commonwealth".
Pursuant to this power, the Governor-General (in Council) made the War Precautions (Prices Adjustment) Regulations 1916, which proclaimed various areas, including "(c) The area comprised within a radius of ten miles from the General Post Office, Melbourne, in the State of Victoria." and provided that
9.(1) The Governor-General may from time to time, on the recommendation of the Board—
The matter proceeded at a remarkable pace. The regulations were proclaimed on 24 March 1916, the determination was published in the Gazette on 10 April 1916 fixing the maximum price for 4 pounds of bread to be sold in Melbourne at 6 1⁄2 pence. Ten days later on 20 April Farey sold four pounds of bread at the price of 7 pence. He was convicted on 12 May and fined £2 plus £6 6s costs.
On 23 May 1916, after Farey was convicted but before the matter was heard by the High Court, the Parliament amended the War Precautions Act, for reasons that are not apparent from the Hansard, with retrospective effect from the commencement of the war. The amendments themselves suggest that there may be some question as to whether the broad regulation power was sufficient to support fixing the maximum price of bread and this was directly provided for with retrospective operation
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