previous
next

§ 405. “During a Period of Ten Years…and thereafter until the Parliament otherwise Provides.”

These words are identical with the introductory words of sec. 87 (the “Braddon clause”), where they were inserted—as this section was inserted—by the Premiers' Conference of 1899. In this section, however, it is very hard to give them any meaning. The phrase “until the Parliament otherwise provides” is used, everywhere except in this section, in connection with some specific provision made by the Constitution—not in connection with a power given to the Parliament. Its effect is to lower such provision to the level of a mere law of the Federal Parliament, and to give the Federal Parliament full power to deal with the whole question. In order to place the legislative power of the Parliament in such cases beyond question, sec. 51—xxxvi. provides that the legislative power shall extend to “matters in respect of which this Constitution makes provision until the Parliament otherwise provides.” But here, the Constitution of itself makes no specific provision. It merely empowers the Parliament to make a provision—and adds that the power may be exercised for ten years, and thereafter “until the Parliament otherwise provides.” According to the grammatical implication, it would appear that if the Parliament at any time after ten years “otherwise provides,” it cuts away its legislative power under the section altogether; so that the Parliament, by passing a law, can destroy its own power for the future. On the other hand, the close connection which this clause has, historically, with the Braddon clause, makes it seem probable


  ― 870 ―
that the Premiers intended that it should survive while the Braddon clause survived, but no longer. The one thing clear is that until the Parliament does otherwise provide, the power will remain in force; and therefore, as the Parliament is not likely to pass a self-denying ordinance to diminish its own powers, this section may be considered, for all practical purposes, as a permanent part of the Constitution.

previous
next