Farey v Burvett[1] is an early High Court of Australia case concerning the extent of the defence power of the Commonwealth.

In 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".

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."

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.

[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 (1A.)

[1] Farey 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.

[13] 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.

[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.

[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."

But when we see before us a mighty and unexampled struggle in which we as a people, as an indivisible people, are not spectators but actors, when we, as a judicial tribunal, can see beyond controversy that coordinated effort in every department of our life may be needed to ensure success and maintain our freedom, the Court has then reached the limit of its jurisdiction.

If the measure questioned may conceivably in such circumstances even incidentally aid the effectuation of the power of defence, the Court must hold its hand and leave the rest to the judgment and wisdom and discretion of the Parliament and the Executive it controls-for they alone have the information, the knowledge and the experience and also, by the Constitution, the authority to judge of the situation and lead the nation to the desired end.

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) In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last else answers the description, and to disregard purpose or object.