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§ 370. “Not More than One-fourth shall be Applied Annually by the Commonwealth towards its Expenditure.”

The “expenditure” here referred to is the expenditure other than the cost of collection, which has already been deducted in order to arrive at the net revenue. It follows that the total amount which the Commonwealth can spend is made up of (1) the cost of collecting the duties; and (2) one-fourth of the net revenue.

This amount can only be expended under appropriation made by law; and the question arises whether, if such appropriation should exceed the specified proportion of the revenue, the courts could pronounce the law to be invalid. It is submitted that the answer must clearly be in the negative. As a matter of practical politics and invariable constitutional usage, appropriations are made in advance of the receipt of revenue, on the basis of the Treasurer's estimates of what the revenue will be. It would be a grave constitutional impropriety for the Governor-General to recommend, for Ministers to submit, or for the Parliament to vote, expenditure in excess of the proper proportion of the estimated revenue. It would also be a grave impropriety for the Treasurer to wilfully over-estimate the prospects of revenue. At the same time, the most capable Treasurer, with the very best intentions, may be over-sanguine; and it would be absurd to hold that the validity of an appropriation might depend on the accuracy of a Ministerial forecast. The validity of a law must be absolutely determinable at the moment it is passed; a law which appropriates the year's revenue before the revenue is received, and whilst its amount is matter for conjecture, cannot depend for its validity upon subsequent events.

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