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{{Short description|Judgement of the High Court of Australia}}
{{Use Australian English|date=November 2017}}
{{Use dmy dates|date=November 2017}}
{{Infobox court case
| name=Farey v Burvett
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| date decided=8 June 1916
| full name=
| citations={{Cite AustLII |year=1916 |court=HCA |num=36 |parallelcite=[http://www.austlii.edu.au
| judges= [[Samuel Griffith|Griffith]] [[Chief Justice of Australia|CJ]], [[Edmund Barton|Barton]], [[Isaac Isaacs|Isaacs]], [[H. B. Higgins|Higgins]] [[Frank Gavan Duffy|Gavan Duffy]], [[Charles Powers|Powers]] & [[George Rich|Rich]] [[Justices|JJ]]
| prior actions=
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'''(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.<small>per Griffith CJ, Barton, Isaacs, Higgins & Powers JJ.</small>
}}
'''''Farey v Burvett'''''
== Background ==
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<blockquote>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:
:(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
:(xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth;<ref name="Defence power">[http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html section 51(vi) & (xxxii)] Commonwealth
114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force ...<ref>[http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s114.html section 114] Commonwealth
119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.<ref>[http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s119.html section 119] Commonwealth
The effect of these provisions is that the defence power is exclusive to the Commonwealth.
===The Act, regulations and order===
In October 1914 the Australian Parliament enacted the [[War Precautions Act 1914|''War Precautions Act'' 1914]] which
Pursuant to this power, the Governor-General (in Council) made the ''War Precautions (Prices Adjustment) Regulations'' 1916,<ref name="1916 Regs No 40">{{cite web|title=''War Precautions (Prices Adjustment) Regulations'' 1916 No 40 |url=https://www.legislation.gov.au/Details/C1916L00040 |publisher=Commonwealth of Australia |date=24 March 1916}}</ref> 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 <blockquote>9.(1) The Governor-General may from time to time, on the recommendation of the Board—
:(a) determine the maximum prices which may be charged for flour and bread sold in any proclaimed area;
:(b) determine the conditions under which flour and bread may
(2) Any such determination shall be published in the Gazette, and shall from the date specified in the Gazette have the force of law.</blockquote>
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==Argument==
Farey was represented by [[William Irvine (Australian politician)|Sir William Irvine]] {{post-nominals|country=AUS|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.<ref name="Farey argument">''Farey v Burvett'' [http://www.austlii.edu.au
Burvett, an Inspector in the [[Department of the Treasury (Australia)|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.<ref name="Farey argument"/>
== Decision ==
The 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.<ref>{{cite
===Necessity===
The 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.<ref>{{cite web |url=http://legalopinions.ags.gov.au/legalopinion/opinion-1699 |title=Opinion No. 1699: Proposed Uniform Federal Income Tax Scheme |author=E M Mitchell KC |author-link=Ernest Mitchell |via=Australian Government Solicitor |date=1 May 1942}}</ref> 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.<ref name="Farey Griffith"/> Barton J similarly held that once it was determined that a law was
Neither Isaacs J, with whom Powers J agreed,<ref name="Farey Isaacs"/> nor the dissenting judges, Gavan Duffy & Rich JJ,<ref name="Farey Gavan Duffy"/> expressed any opinion on this issue.
===Extent of the defence power===
Griffith 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."<ref name="Farey Griffith"/> Barton J argued from the perspective that the safety of Australia depended on the success of the [[British Empire]] in the war,
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.<ref name="Farey Isaacs"/> 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.<ref name="Farey Higgins"/>
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===Reserved Powers===
One 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,<ref name="Petersweld">{{cite AustLII|litigants=[[Peterswald v Bartley]] |year=1904 |court=HCA |num=21 |parallelcite=[http://www.austlii.edu.au
[http://www.austlii.edu.au
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."<ref name="Farey Griffith">''Farey v Burvett'' [http://www.austlii.edu.au
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,<ref name="Barger Isaacs">{{cite AustLII |litigants=[[R v Barger]] |year=1908 |court=HCA |num=43}}; [http://www.austlii.edu.au
Higgins J similarly maintained his rejection of the reserved powers doctrine,<ref name="Baxter Higgins">{{cite AustLII|litigants=[[Baxter v Commissioners of Taxation (NSW)]] |year=1907 |court=HCA |num=76}}; [http://www.austlii.edu.au
Gavan Duffy & Rich JJ in their dissent placed emphasis on the powers of the States, holding that <blockquote>The enumerated powers entrusted by the States to the Commonwealth are stated in language adopted after prolonged and meticulous discussion. The powers distributed and reserved were intended to enable the individual States and the federation of States to move, each in its own orbit, in a complete and permanent harmony.<ref name="Farey Gavan Duffy">''Farey v Burvett'' [http://www.austlii.edu.au
==Subsequent consideration==
In ''[[Stenhouse v Coleman]]''<ref name="Stenhouse"/> [[Owen Dixon|Dixon J]] explained the difference in approach to the defence power arising from ''Farey v Burvett'' as follows:
<blockquote>Some of the difficulties which have been felt in the application of [the defence power] seem to me to be due to the circumstance that, unlike most other powers conferred by s. 51 of the Constitution, it involves the notion of purpose or object. In most of the paragraphs of s. 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy)
== See also ==
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== References ==
{{reflist
[[Category:High Court of Australia cases]]
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