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Farey v Burvett
Farey v Burvett[1] is an early High Court of Australia case concerning the extent of the defence power of the Commonwealth.[2] 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. BackgroundThe constitutional powersThe Constitution deals with defence in a number of related provisions, relevantly providing that :
The effect of these provisions is that the defence power is exclusive to the Commonwealth. The Act, regulations and orderIn October 1914 the Australian Parliament enacted the War Precautions Act 1914 which authorized 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".[5][6] Pursuant to this power, the Governor-General (in Council) made the War Precautions (Prices Adjustment) Regulations 1916,[7] 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
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 61⁄2 pence.[8] 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.[9] 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,[10][11] with retrospective effect from the commencement of the war.[12] 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
The matter was heard by the High Court starting on 31 May and the decision published on 8 June 1916.[1] ArgumentFarey was represented by Sir William Irvine KC and Hayden Starke who argued that the existence of war did not supersede the express limitations of the Constitution, including the reserved powers doctrine, and the defence power was the same whether there be peace or war. The law of necessity overrides the constitutional limitations, however whether the necessity exists is a question of fact to be determined by the courts. The defence power did not extend to matters which are indirectly conducive to the naval or military defence.[13] Burvett, an Inspector in the Commonwealth Treasury, argued that defence including attacking all resources at the disposal of the enemy and conserving the resources of the Commonwealth. The export of the wheat surplus was desirable both for supplying troops and funding the war.[13] DecisionThe majority of the High Court, Griffith CJ, Barton, Isaacs, Higgins & Powers JJ held that the defence powers in sub-section 51(vi) of the Constitution was sufficient during the war for the Commonwealth to fix the maximum price for bread. In doing so the majority adopted a different method of interpretation from that adopted in dealing with the other heads of power in section 51, in that they treated the defence power as a purpose to which the legislation must be addressed while other powers require that the legislation is directed to the subject matter or answers the description of the head of power, and to disregard the purpose or object.[14] Gavan Duffy & Rich JJ dissented in a joint judgement. NecessityThe Court held that it was no answer to the War Precautions Act to say that a method was not necessary because the end might be attained by other means because the choice of means was a matter for parliament.[15] Griffith CJ rejected the concept of necessity as overriding the Constitution and that the court may make inquiry into the facts, holding that the Court was concerned with the existence of the power and whether it was necessary or desirable was a matter for Parliament.[16] Barton J similarly held that once it was determined that a law was authorised by the Constitution, whether it was wise and expedient was a political question for the Parliament, not a judicial question for the Courts.[17] Higgins J in his separate judgement also held that it was enough that the Act was capable of aiding the defence of the Commonwealth and that whether it did so was not for the Court to decide.[18] Neither Isaacs J, with whom Powers J agreed,[19] nor the dissenting judges, Gavan Duffy & Rich JJ,[20] expressed any opinion on this issue. Extent of the defence powerGriffith CJ disposed of the suggestion that the defence power was in some way limited holding "As to the suggested limitation by the context, the words "naval" and "military" are not words of limitation, but rather of extension, showing that the subject matter includes all kinds of warlike operations."[16] Barton J argued from the perspective that the safety of Australia depended on the success of the British Empire in the war, holding that the defence of Australia was not limited to the operations of troops and warships, but extended to the use of every resource of the nation to injure the enemy or help Australia's allies. Barton J held that the Act and regulations were a valid exercise of the defence power in times or war, but not in time of peace.[17] Isaacs J also saw the war as a battle for the continued existence of Australia, holding that all other powers were necessarily dependent on the effective exercise of the defence power for the purpose of preserving Australia and the States at all hazards and by all available means.[19] Higgins J the ambit of the defence power was "not merely to make laws for the control of the forces, but to make laws (not for, but) " with respect to " naval and military defence, and to matters incidental to that power". The nature of defence may require a national effort to preserve Australia's existence, requiring the whole force of the nation.[18] Gavan Duffy & Rich JJ disagreed that the extent of the defence power depended on whether there was a state of war or peace, holding that "he provisions of the Constitution must have a fixed and accurate meaning which cannot vary according to the pressure of circumstances." Their Honours saw the defence power as limited to dealing "with the raising, maintenance or use of any naval or military forces, or with the training or equipment of such forces, or with the supply of any naval or military material, or with any matter immediately ancillary to any of these things".[20] Reserved PowersOne of the challenges for Griffith CJ and Barton J was how to accommodate the doctrine of reserved powers. If the Commonwealth Parliament was unable to regulate the brewing industry,[21] conditions for railway employees,[22] manufacturers of agricultural machinery,[23] or unfair competition by corporations,[24] how could the Commonwealth's powers extend to directly fix a maximum price for bread? Griffith CJ held that "The power to make laws with respect to defence is, of course, a paramount power, and if it comes into conflict with any reserved State rights the latter must give way."[16] Barton J distinguished between powers in peace and war, holding that "If an activity belongs solely to a State in time of peace it does not follow that it is not a means of defence for Commonwealth hands in time of war."[17] Isaacs J doubted that it was permissible to give legal prominence to any one Commonwealth power, even one as necessary as defence, maintaining his previous rejection of the reserved powers doctrine,[25] holding the limits of the defence power "are bounded only by the requirements of self-preservation. It is complete in itself, and there can be no implied reservation of any State power to abridge the express grant of a power to the Commonwealth". His Honour acknowledged that the Commonwealth was entering a legislative area normally outside of its powers, holding that
Higgins J similarly maintained his rejection of the reserved powers doctrine,[26] holding that the constitutional question was limited to the interpretation of the express defence power and rejected the suggestion that the defence power was paramount, holding "All the subjects for legislation in sec. 51 are on the same logical level: there is no hierarchy in the powers, with the power as to defence on the top."[18] Gavan Duffy & Rich JJ in their dissent placed emphasis on the powers of the States, holding that
Subsequent considerationIn Stenhouse v Coleman[27] Dixon J explained the difference in approach to the defence power arising from Farey v Burvett as follows:
See alsoReferences
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