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§ 368. “During a Period of Ten Years after the Establishment of the Commonwealth, and thereafter until the Parliament otherwise Provides.”

These words were inserted at the Premiers' Conference (p. 219, supra). Compare the amendment proposed by Mr. Barton. (Conv. Deb., Melb., p. 2424.) For ten years after the establishment of the Commonwealth this section is a constitutional provision, alterable only by the process of constitutional amendment. At the expiration of that time, it will, in effect, descend to the level of an Act of the Federal Parliament; that is to say, it will, by virtue of the words “until the Parliament otherwise provides” (see sec. 51—xxxvi.) become subject to alteration or repeal by simple federal legislation. If the Parliament is satisfied with its operation, it will remain in force, but always on sufferance.

This limitation removes one of the chief objections to the section, namely, its want of elasticity. For the present, and in the near future, the section is not likely to cause much inconvenience, but in the unknown future, when conditions have changed—as they must change—it may seriously hamper federal finance. It fixes an arbitrary and unalterable proportion, on one side, in the apportionment of customs and excise revenue between the central and local governments. Should it be desired to increase the proportion of customs and excise revenue paid to the States, the section would not stand in the way; but should it be desired to increase the proportion which may be spent by the Commonwealth, it would offer an insurmountable barrier. There is no “eternal principle” in the three-to-one proportion, which is based merely on present financial conditions; and its loss of constitutional protection after ten years obviates the danger of undue rigidity.

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