Farey v Burvett [1916] HCA 36

Farey v Burvett [1916] HCA 36 - HCA 1916 case summary — Zoe

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ports to authorize the Governor-General to make, in particular, such Regulations as he thinks desirable for the more effectual prose- eution of the War, or the more effectual defence of the Common-

wealth or of the realm, "prescribing and regulating" (inter alia) "the conditions (including times, places, and prices) of the disposal or use of any property goods articles or things of any kind." By a Regulation of 24th March 1916 certain areas, comprising the area within a radius of ten miles from the General Post Offices at Sydney and Melbourne, within seven miles of the General Post Office at Brisbane, within six miles of the General Post Office at Adelaide, within four miles of the General Post Office at Perth, and within three and a half miles from the General Post Office at Hobart, together with certain other populous districts in
the Commonwealth were declared to be " proclaimed areas," and the Governor-General was authorized on the recommendation of a Board to be constituted under the Regulations to determine the maximum prices which might be charged for flour and bread in ; any proclaimed area. By a Regulation of 12th April the Governor- _ General was empowered to fix the prices without the recommendation of the Board. The "proclaimed areas" in fact include almost all the populous parts of Australia. _ By an Order of 10th April 1916 the Governor-General determined the maximum prices which might be charged for flour and bread in the proclaimed areas. The appellant was convicted of selling _ bread in a proclaimed area at a greater price than that so determined. All this legislative action purports to have been taken in execution _-of the power conferred by pl. vi. of sec. 51 of the Constitution, by which the Parliament is authorized to make laws with respect to "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." The question is whether it is warranted by that power. _ The general principle to be applied in determining whether an attempted exercise of a power is valid has been more than once enunciated by this Court. In Jumbunna Coal Mine, No Liability

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I have endeavoured to show how widely sec. 51, sub-sec. v1., extends in its ambit, but it is very difficult, even if it is possible, to express its ambit, as it exists in this time of war, by any proposition intended to define it. Many matters may, not because of enthusiasm, 'or excitement, but by compelling reason, be seen to come within it at a critical time, which at a time less critical were not realized as embraced in its scope as aids to defence. It may be only in a great emergency that it is demonstrated that they must be utilized to render defence successful. For instance, a great battle is fought 'on our land, or in our waters, or thousands of miles away. Suppose the result to be indecisive or even adverse. Subjects which before that battle seemed only indirectly or remotely connected with defence as the means of winning the war may after the battle be seen quite clearly to be within it. It may be, as Sir William Irvine urged, that the power does not change. If that is so it is because of the perspective of affairs: because the power looks narrower in peace, when it is not in the foreground of our view than it does as a means of present war when war brings us into close contact with it - when its exercise becomes the most vital of our activities. It may be that the power does not become enlarged in war, but that when seen closely we know how large it is in relation to existing war. Then at least we are able to envisage the reach of its long arm. If the thing be capable, during war, of aiding our arms by land or sea, here or elsewhere, we are to say so, but 'we say no more. It may be wholly beside the mark in peace, and, if it be so, we are to say so upon due occasion. But the necessity is not for us, when facts of which we take judicial notice establish that the thmg is capable of aiding directly the execution of the power. If it is thus capable, then the question of the necessity, or the wisdom or expediency, of invoking such aid, is for Parliament or its duly delegated authority.

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legislative power been placed in the hands of the Commonwealth Parliament, but its effective exertion has been made exclusive, : because by sec. 114, the States themselves are forbidden, unless 4 they have the consent of the Commonwealth Parliament, to raise : or maintain any naval or military force ; by sec. 119 the Common- - wealth is commanded to protect every State against invasion, Besides the legislative power, there is the executive authority of the Commonwealth. By sec. 61 of the Constitution that is vested in the Sovereign and (subject to sec. 2) is exercisable by the Governor- General as the royal representative, and, says sec. 61, this executive power extends to the execution and maintenance of this Constitu- ; tion, and of the laws of the Commonwealth. These provisions carry with them the royal war prerogative, and all that the common : law of England includes in that prerogative so far as it is applicable to Australia. The creation of a state of war and the establishment of peace necessarily reside in the Sovereign himself as the head of the Empire, but apart from that, the prerogative powers of the Crown are exercisable locally. The full extent of the prerogative it is not necessary now to define, but it is certainly great in relation - to the national emergency which calls for its exercise, as may be - seen by reference to Chitty on the Prerogatives of the Crown (pp. 49 and 50). The only importance of it now is the fact that it is included in the Commonwealth powers and indicates the complete- ness of authority vested. Superadded to all this, sub-sec. XXXIX. of sec. 51 enables the Parliament to legislate as to all matters incidental to the execution of the legislative powers of the Parlia- ment itself, and of the executive power of the Crown. So that by the very words of the Constitution there is vested, in the most ample and absolute terms, in the Commonwealth the full power and duty of taking every measure of defence which the circumstances may require as they present themselves to the proper organs of Government, to protect this Continent from foreign aggression, for maintaining its freedom - always under the British Crown - and in short for preserving its very existence as a unit of the Imperial family of nations.

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lass, among Commonwealth powers, that must of necessity be accorded to the defence power. All other powers and authorities - Common- wealth and State - are necessarily dependent upon its effective exercise. For of what avail is the State right to regulate the internal sale of commodities if the State itself disappears? Or of what value is the Commonwealth right to regulate inter-State and foreign - "trade if the Commonwealth is shattered? The best protection ell the - tights and powers so jealously, and in ordinary times so justifiably, | defended can have, so far as Australia is concerned, is the very _ Commonwealth power that is now sought to be limited. The Constitution cannot be so construed as to contemplate its own destruction or, what amounts to the same thing, to cripple by checks and balances the ultimate power which is created for the undeniable purpose of preserving at all hazards and by all available means the - inviolability of the Commonwealth and of the several States. Let me advert as an instance to a section which has been referred to in - argument and which admirably tests the situation, because it is so inherently clear. Sec. 92 in the most positive terms places beyond Commonwealth and State control alike the freedom of all inter-State commerce and intercourse. But though in ordinary times of peace this cannot be infringed, could it be asserted for a moment that it limits the war power? Can every citizen demand the right of passage from State to State, though military necessity is openly opposed to it? Isit the function of this Court to declare the supremacy of that provision, literally construed, over the organic power of defence? But if not, is it not because the new element of war destroys the - ordinary perspective of national life, and gives by the very nature of the circumstances a paramount authority to the defence power, without which the 92nd clause would be a senseless inscription on the instrument of government? 'The essential fact is that Aus- tralians are belligerents as well as citizens, and for the moment their character as belligerents is pre-eminent and must receive the first consideration.

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sale or use of alcohol, or the purchase of foreign goods. We have no evidence before us of the facts which, in the opinion of Parliament, rendered the present Act expedient for the purpose of the War, and for the term of the War ; but there may have been such facts. I am not entitled to use as facts in this case matters which I have learnt aliunde ; but I may refer to the following personal experiences as hypothetical illustrations of the possible. I was in Sicily in February of last year when Italy was still neutral. There were bread riots, bakers' shops were looted ; and the outlook was serious. Wheat was scarce, and bread was rising in price. At that very time, 'as now-appears, the Government was engaged in critical negotiations with Austria ; and nothing would have suited Austria better than that Italy should be so distracted by internal revolts as to be unable to undertake external operations. The Government of Italy took measures to allay the excitement as to bread, and thereby became free to apply itself to preparations for external war. These measures were quite as important for the naval and military defence of the country as measures for the raising, maintaining and using the army. Then, early this year, the waterside workers in Melbourne took it into their heads to refuse to handle wheat for export, saying that the export of wheat would raise the price of bread. Our Government was then engaged in a great scheme for the exporting the wheat of an abundant harvest to feed the people of Great Britain and our Allies. As President of the Court of Conciliation, I managed to get the waterside workers to see their mistake, and to leave the whole subject to be handled by the Government and Parliament ; and these Regulations and the impugned Act are, to all appearances, the response of Parliament. Whether the Act will be effective or ineffective, useful or hurtful, it is not for this Court to decide ; it is enough that Parliament, for purposes of the War, wants to export the Australian wheat, and probably wants to do so without inflicting privations on the working classes ; and the fixing of the price of bread seems to be an expedient adopted. To secure peace and contentment and orderly industry among the people, from whom all our national force comes, may be as valuable @ war measure as the equipment of an army division. To consolidate

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denied to the Parliament of the Commonwealth, and which we must for a like reason deny to him. It will be said that, whatever may be the grammatical construction of the language employed, the real intention of the Legislature was to authorize only such Regula- tions as were in fact directed to the more effectual defence of the Commonwealth and to confer power on the Governor-General only within that limit and the limit of the language of sub-sec. (6). We have already examined the scope and effect of that sub-section ; let us see what sanction for its octopus grip is to be found in the Constitution. 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. Where it seemed possible that the powers, whether distributed or reserved, might be too liberally construed, the desired limitations were expressly stated as in sec. 114. Where it was feared that they might be construed too narrowly, the powers intended to be vested were expressed in detail as in sec. 51 (xxxur.), which adds to the powers of naval and military defence the power of controlling railways with respect to transport for the naval and military purposes of the Commonwealth. As was said by Viscount Haldane L.C. in delivering the judgment of the Privy Council in Attorney-General for Australia vy. Colonial Sugar Refining Co. (1): "About the fundamental principle of that Constitution there can be no doubt. It is federal in the strict sense of the term . . . . Ina loose sense the word ' federal' may be used . . . to describe any arrangement under which self- contained States agree to delegate their powers to a common Govern- ment with a view to entirely new Constitutions even of the States themselves. But the natural and literal interpretation of the word confines its application to cases in which these States, while agreeing on a measure of delegation, yet in the main continue to preserve their original Constitutions. . . . In fashioning the Constitution of the Commonwealth of Australia the principle established by the United States was adopted in preference to that chosen by

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chooses without affecting their validity. In the year 1914 it passed the Act 4&5 Geo. V. c. 29, and by that Act declared that His Majesty in Council had power during the continuance of the present war to issue Regulations as to the powers and duties of the Admiralty and Army Council, &c., for securing the public safety and the defence of the realm, and might by such Regulations authorize the trial, by Courts Martial, of certain persons in like manner as if such persons were subject to military law. So far the Regulations were clearly within the narrowest meaning of the phrase " for securing the public safety and the defence of the realm." Subse- quently it was thought desirable, from time to time, to enact that His Majesty had power to make Regulations not so cognate to naval and military defence as were those under the original Act. This was done, as one would expect, by amending the original Act, and in the end the Act as amended authorized Regulations which in some cases seemed as far apart from naval and military defence as are those authorized by the amended sec. 4 of the War Precautions Act 1914-1916. All the powers to make Regulations, which Parliament intended to deal with, were thus gathered together in one enactment as a matter of convenience. The powers to make the various Regulations and the Regulations themselves would have been valid if the powers had been inserted in a Customs Act or a Merchant Shipping Act or in an Act devoted, so far as its main principles were concerned, to any other object, or if they had been inserted separately in various Acts dealing with various subjects. This being so, we cannot accept the legislation referred to as in any way helping us to a definition of the expression "military and nayal defence of the Commonwealth." Finally, we were pressed not to withhold from the Commonwealth a power so conducive to the effective conduct of a war in which _ we are engaged, as we firmly believe, on the side of honour and _ righteousness. Such an appeal is ill made to Judges who are sworn to administer the law without fear, favour or affection, and whose fundamental duty is to interpret the law as they understand it, not to strain it this way or that at the bidding of expediency. But in our opinion the respondent has wholly failed to show that the power to fix the price of bread in Melbourne and its suburbs at the

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Judgment (187 paragraphs)