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Thursday, 9 October 1902


Mr MAHON (Coolgardie) - Early last month I directed the attention of the leader of the Government to the burden placed on trade between theeastern States and the Western Australian gold-fields by the refusal of the Western Australian Government to give the gold-fields access to their nearest seaport. In reply to a series of questions then addressed to him, the honorable gentleman intimated that the question was one to be determined by the proposed Inter-State Commission, and that section 102 of the Constitution could hardly be relied on to cover the case presented by me. It is my duty to combat that view, and I, therefore, submit for the acceptance of this House the following proposition : -

That the construction of a railway between Esperance and Coolgardie, or some other point on the eastern gold-fields of Western Australia, is essential to the" absolute freedom " of InterState trade contemplated by the Constitution.

First of all, I desire to acknowledge the courtesy of the leader of the Government in affording me this opportunity of exposing to the people of Australia the hardships inflicted without cause on some of their fellow citizens in the western State. I venture to hope that my colleagues and I have earned some little latitude ; for, during a session of nearly eighteen months' duration, no honorable member from Western Australia has ventured to intercept the important work on which this House has been engaged by any question touching only those whom we have the honour to represent here. We have so far f foreborne to intrude any sectional grievance which might delay or displace the discussion of national issues. But the time has now arrived when this Parliament should be prepared to listen sympathetically to complaints from a minority in any State who are being cheated out of the chief benefit which they expected would follow from the federal union. That is the position to-day of the inhabitants of the gold-fields of Western Australia, and I say it is a position which should excite the active sympathy of every true federalist. That Western Australia is one of the original States in the Federation is largely due to the enthusiasm and the self-sacrifice of the gold-fields population. What was it that aroused and sustained this enthusiasm ? Certainly the grand ideal of nationality ; but also the strong belief that federation would give unfettered intercourse with the rest of the continent and free play to the efforts of men pioneering an arid and inhospitable region. No whining plea for exceptional treatment has ever reached this Parliament from that territory. Its settlers have never been suppliant for the privilege of preying on any other class in the Commonwealth. All they seek is that, in a hand-to-hand conflict with nature, they may be allowed access to, and free use of, such advantages as nature has conferred on them. They demand no more than that man shall not interpose a barrier between them and their natural outlet to the sea. What are known as the eastern or Coolgardie gold-fields embrace an area of about 450 miles from north to south, and of about 250 miles from east to west. Their southern fringe is little more than 100 miles from the ocean at Esperance, where there already exists a safe and commodious harbor. This port is about 220 miles from the main centre of population on the gold-fields, and is some 600 miles nearer than Fremantle to the eastern States. Fremantle lies to the extreme west, nearly 390 miles from Kalgoorlie. The whole of the passenger and goods traffic from the eastern States is thus carried some 600 miles by sea beyond the port nearest to its destination, and must then undergo an extra land carriage of 170 miles. For more than seven years the people have continuously agitated for the connexion of the gold-fields with Esperance by rail. Every appeal has been ignominiously rejected by the Western Australian Parliament, whose latest act is the refusal of a Royal commission to investigate the merits of the proposed railway. Now, I deny that the decision of that Legislature reflects the matured judgment of a majority of the people of Western Australia with respect to this project. The representative character of that Legislature will be apparent when it is known that, in 1900, some 211 persons had in the Assembly three members, whereas in the same year a single-member electorate on the gold-fields contained nearly 6,000 qualified voters. This inequality of representation still exists, though slightly modified recently, and justifies my assertion that the refusal of this railway is without popular warrant. Briefly, that refusal imposes on every passenger and every ton of goods from the eastern States an extra haulage of 800 miles. A few parallel cases may be cited to assist the imagination of those who have not enjoyed a trip round the Leuwin, and the subsequent long land journey to the gold-fields. The circuit via Fremantle is very much like that of going around by way of. Brisbane in order to reach Bourke, in New South Wales. Or imagine a Brisbane resident, whose destination is Winton, being compelled to sail around Cape Yorke Peninsula and proceed via Normanton - that is practically the position of one journeying from the eastern States to the gold-fields of Western Australia. At first blush this may seem to be a grievance with which this Parliament has no real concern, but 'I hope to demonstrate the fallaciousness of such an assumption. Who compose these .gold-field settlements? Mainly people from the eastern States, who still retain here ties of friendship and trade, rendering intercourse imperative. From the eastern States also come vast consignments of foodstuffs and manufactured articles; imports which should increase if the Federal Tariff does what honorable members opposite expect it to do. In view of the doubt expressed by the Acting Prime Minister, I venture to define InterState trade as trade in commodities produced, say, in Victoria, and consumed in Western Australia. This trade is, by the refusal of the State Government to construct a railway, forced out of its natural channel. It is driven to make an unnecessary circuit of many hundred miles. This extra haulage of necessity involves extra expense. Whatever that extra expense may be, it is added to the price of the commodity paid by the Western Australian consumer. That this charge adds to the price paid by the consumer is in accordance with experience and with the laws of political economy. Thus the extra expense of this unnecessary haulage is the practical equivalent of an import duty, which no State has the right to impose.


Mr Ewing - I doubt whether, under the Constitution, we can deal with this question.


Mr MAHON - If the honorable member follows me a little more closely, he may see reason to alter his opinion before I have finished. The extra cost involved by this unnecessary haulage amounts to giving "a preference" to the local producer of similar goods.It is virtually "a discrimination" in favour of the local producer and against his Inter-State competitor. What more could a direct tax - that is, an import duty - do by way of protecting western products from eastern competition? So this extra and unnecessary haulage, the cost of which is the clear equivalent of an import duty, is in flat contravention of section 92 of the Constitution, which declares that " trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be alsolutely free." Now, how can trade be " absolutely free," which is culpably burdened by a State Government with charges that have, and are intended to have, all the effects of an import duty? The United States Supreme Court has repeatedly pronounced such barriers on trade to be unconstitutional. The principle laid down by Chief Justice Taney was this : -

If a State is permitted to levy it (a tax on imports) in any form .... one of the principal objects of forming and adopting a Constitution would be defeated. It could not be done directly in the shape of a duty on imports, for that is expressly forbidden . And if it could not be done directly, it could hardly be a just and sound construction of the Constitution which would enablea State to accomplish precisely the same thing under another name and in a different form.

The terms of that remarkable judgment fit this case exactly, though the practice it adjudged illegal differs from that which I am discussing. But the results are the same ; for, as I have shown, this unnecessary cost is substantially an import duty ; and the State having lost the power to directly impose such a duty cannot be allowed to impose it indirectly. Now the powers of this Parliament over trade and commerce do not materially differ from those vested in Congress by the American Constitution. Congress is authorized " to regulate " - while this Parliament may "make laws with respect to" - trade and commerce. The omission of the words, " to regulate " from our Constitution, according to Quick and Garran in their Annotated Constitution, page 516, "can certainly not be held to narrow the scope of the power, and may, perhaps, in some degree, extend it." That being so, is it unreasonable to hope that our courts will follow the Taney judgment, and declare that the cost of this extra haulage, being the equivalent of an import duty, is an illegal charge ? Had the courts not given extreme elasticity to theAmerican commerce clause, their Constitution would not have worked so smoothly. In a text-book on this clause, by Prentice and Egan, this point is well stated : -

Freedom of transportation from conflicting, discriminating, and burdensome restrictions was thepurpose of the Constitution ; and while the language employed was almost necessarily such as referred to the means of transportation then in existence, and within the knowledge of the Convention, nevertheless the operation of the Constitution is not confined to the instrumentalities of commerce then known, but keeps pace with the progress of the country and is adapted to new developments of time and circumstance.

The concluding words of this passage have the utmost significance, and bear closely on this case. If our Constitution is to work satisfactorily it also must be elastic enough to meet such a "development" as this, where a State penalizes one section of its people for the advantage of another ; for otherwise it is inconceivable that the framers of the instrument should have neglected to insert a specific prohibition. We must follow up this principle of expansion, unless resort is to be had to the cumbersome and costly device of submitting to a popular vote every trifling amendment found to be necessary. In reply to the interjection by the honorable member for Richmond, I may remind honorable members that, as the main purpose of federation was freedom of trade and intercourse among the States, it seems absurd to hold that the Constitution lacks the means to accomplish that end. I am hopeful that this power will be found latent in section 51. That clause charges us with the duty of making laws "for the peace, order, and good government of the Commonwealth " with respect to, amongst other matters, "trade and commerce;" and section 98 extends this authority to " railways the property of any State." The phrase " Peace, order, and good government " is pregnant and far-reaching. Its possibilities of application are infinite. The boldest imagination of our day cannot accurately outline its range, nor forecast the blessings which its wise interpretation may bestow upon generations yet to come. It certainly appears to justify some action in this case. For, is it compatible with the " good government of the Commonwealth " that the cost of living should be artificially enhanced to 50,000 people for the benefit of a small group of land-owners in Perth and Fremantle? Is " good government " reconcilable with the permanent divorcement of a great community from its natural outlet to the sea, to the waste of public resources, and to the injury of public health? If that liberal interpretation which American jurists gave, and continue to give, to corresponding clauses in their Constitution is followed here, I am convinced that the federal arm is even now long and strong enough to smash this State injustice. The American courts, at any rate, find no difficulty in meeting the most ingenious devices of the States to fetter internal trade for their own advantage. A case resembling in some details that in hand occurred some years ago in the State of Iowa. A railway company was required by a local law to tranship passengers and goods at the town of Council Bluffs instead of permitting them to proceed right through to their destination in some other State. Apparently this was done so that the State of Iowa, or some of its traders, might reap an advantage by the transhipment. The company appealed to the Supreme Court, and Chief Justice Miller, who ruled the regulation to be ultra vires, in the course of his judgment) observed -

Commerce may suffer no more from a law requiring a direct tax to be paid thereon into the State Treasury than from a regulation under which charges will be exacted by individuals. . . And a regulation of a State, whereby the most speedy transit is prevented-

Exactly what happens in this case. The nearest route is closed, and kept closed deliberately by the Government of Western Australia, thus preventing " the most speedy transit ''- may be a greater burden upon Inter-State commerce - a greater embarrassment to it - than taxes of the character already held invalid. Celerity in the transportation of passengers and freight is now imperatively demanded by the business of the country ; every impediment thereto is a burden upon commerce, and State statutes producing such results are clearly in conflict with the Constitution.

These extracts sufficiently emphasize the principle which, I contend, should be recognised by us. The only difference between the Iowa case and that of Esperance is that the "impediment" in the latter is created indirectly by the culpable refusal of the State Government to construct a railway to provide " the most speedy transit " of passengers and goods. But there is no practical difference in the results. The act of commission in the American case had precisely the same effect as the act of omission has in this case. An impediment is successfully interposed in both instances to that "absolute" freedom of trade and intercourse supposed to be guaranteed by our Constitution. To contend that we have no power to meet such an abuse is a confession of weakness - an admission that our charter is defective in that part where it should be strongest and most effective. This will be more apparent if we dwell for a moment on a possible case. Let us assume that prior to federation Esperance had been connected by rail with Coolgardie, and that the Western Australian Government charged, as it now does on existing lines, a lower rate for carrying local than for imported products. We have power, under section 102, to forbid this preferential rate absolutely. We could compel the State Government to haul InterState products at precisely the same rates charged for similar commodities locally produced. But if some narrow interpreters of the Constitution be correct, we could not. prevent the Western Australian Government from withdrawing its rolling-stock, tearing up the rails, and dismantling the port.

Now, the greater usually includes the* less ; but this rigid reading of the Constitution collides with that axiom. It implies that while the States possess the far-reaching right of shutting up a railway altogether, they have lost the lesser power of regulating their rates of carriage on such railway while it existed. And it means that while the Commonwealth may control rates so as to free Inter-State commerce from preferential treatment, it is, nevertheless, powerless to prevent the absolute closure of a trade route, even though the latter results in the imposition of an immeasurably heavier handicap on Inter-State commerce. This is the impasse into which this argument leads, from which, if this view of the Constitution be correct, there is no outlet. It will be said, possibly, that the dismantling of a railway is an improbable contingency. Those who think so will do well to study the story of railway wars in the United States. What has been said of democracy - that nothing is impossible to it - is to some extent true of Western Australia. Strange things have been done, are still being done, by the Government of that State. But be the contingency probable or improbable, the argument is unaffected. Looking broadly at our Constitution, giving a generous construction to its mandate that trade between the States shall be "absolutely free," is not the conclusion inevitable that we may forbid a State from shutting up an existing trade route 1 Then, if that be conceded, it follows, as the logical complement of the contention, that no State may keep" a plainly natural trade route permanently closed - certainly not without the strongest proofs of financial inability to open it. No such proofs can be furnished in this instance ; for this railway could easily be built from the surplus revenue given Western Aus stralia by the Federal Tariff. Now there is no practical difference between shutting up and refusing to open a natural trade route. The result is the same to the trade which would pass through that channel. Therefore it seems to me that if we may forbid a State from dismantling a railway and closing a trade route, there must also be in this Parliament a force that, at any rate, can be indirectly used to compel a State to open a trade route by the construction of a railway on good cause being shown. I hope it will never to come to this, but let those who arrogantly close to the gold-fields population its natural avenue to the ocean take heed of the inherent powers of the Commonwealth in this regard. The American .Congress, with no wider prerogative than ours, has not only built railways, but expends money on ports, harbors, and rivers for the promotion of InterState commerce. Our power to construct a railway is accompanied by the reservation that it is to be done " with the consent of the State" through which the railway passes. I quote this to show that there is no intention to shirk any difficulty, nor to mislead the House as to its powers. This Parliament cannot construct a railway from Esperance to Coolgardie without the consent of the State Government. Moreover, it cannot formally direct the State Government to build it. That is beyond question. But a time may come when an Inter-State Commission will be found talking to the Government of the western State in some such strain as this: -

Yes ; you are probably within your rights in forcing Inter-State passengers and trade to a favoured port, involving the delay and cost of many hundreds of miles of unnecessary haulage. But this charge is practically equivalent to an import duty on Inter-State trade, which neither directly nor indirectly have you any legal wan-ant for levying. The profits on your railway from Fremantle to the gold-fields make good the shortage on your other lines, which proves that your rates on that line are excessive for the service rendered. Your railway policy gives "a preference" to the local producer, and "discriminates " against his Inter-State competitor. In future your railway charges must be based on what is fair and reasonable for a haulage of 220 miles instead of 387, subject to an additional deduction for the cost of the extra sea carriage which your action inflicts upon Inter-State traffic.

Undoubtedly, if the commission is to give full effect to the command of the Constitution, that trade between the States shall be " absolutely free," by which is meant free from artificial obstructions, then it must assume the position indicated. For the refusal to give a community access to its' natural and nearest port in order that it may be forced to use a far distant outlet, is as clearly an ' obstruction to commerce as anything can well be. It is an injustice which no free community should be expected to tolerate. It outrages the spirit, if not the letter, of the Constitution. But if we are forced to narrowly adhere to the letter and ignore the spirit of the instrument, then the Western Australian Government, like Shylock, should be held to the bond. Let me remind them that there is nowhere in the Constitution a definition of the word " railway." Hence a tramway, whether worked by steam or electricity, may by some modern Portia be declared to be " not in the bond." In other words, the inferential restriction against the Commonwealth constructing a railway "except with the consent of the State " may not necessarily include a tramway, nor does it forbid this Parliament, in freeing and promoting Inter-State commerce, from taking full advantage of any new development in the science of traction. For instance, there is nothing to prevent the Federal Government from sending its mails direct from Adelaide to Esperance and thence to the gold-fields by rapid motor cars running over a specially prepared track. A little reflection on these points should convince the West Australian Government that in refusing this railway it stands on thin ice, which will not much longer resist the existing and growing pressure. At any rate, I trust that that Government may learn from this discussion' that the Commonwealth will exert its powers to the full for the protection of its citizens against oppression. Now I leave the constitutional aspect of the question for a glance at its practical side. Two objections are urged against the construction of this line. The first is, that Esperance is not a safe harbor ; and, second, that the railway would not be a commercial success. If either of these objections were sound, the proposal might be at once dismissed. But I shall demonstrate that both are baseless. Esperance harbor is completely land-locked, and is approached by a surveyed, well-defined channel from 20 to 60 fathoms deep. A commodious Government jetty runs out into 20 feet of water, at which such ships as the Adelaide, Innamincka, and the New Guinea have berthed. During his visit in May, 1898, Sir John Forrest, the then Premier, is reported to have said -

He was well pleased with their harbor. He thought it an excellent one, and very little was left to be desired in its accommodation. They had a very good start to become one of the chief ports of the colony.

The State Government's confidence in the permanence of the port is shown by the fact that all the public buildings have been constructed of stone. As to the other objection, reinforced by the reminder that settlement between Esperance and Coolgardie is too restricted to justify a railway, it is forgotten that railways promote settlement and develop traffic. Had no railways been built in Australia until settlement fully justified their construction, our railway mileage to-day would be insignificant. ' For most of the facts now submitted to the House I am indebted to an able and convincing speech by Mr. A.E. Thomas, member for , Dundas in the local Parliament. He. showed that the line would tap a large area of agricultural country, enjoying an average rainfall of 12½ to 30 inches, and already in parts yielding better crops of wheat than are obtained in any other portion of the State. This railway would give to the great mines of Kalgoorlie a quarter of a century's fuel, of which they stand badly in need. It would penetrate, at the Norseman, a proved auriferous belt 40 miles long by 5 miles wide, which has already produced 200,000 ozs. of gold. Between Norseman and Coolgardie it would give fresh life to many other mining settlements now stagnant because of the excessive cost of mining development. The expenditure on Mr. Thomas' own property will enable honorable members to realize the great wrong inflicted on this community by the refusal of a railway. From its inception until recently this particular mine paid £22,327 for haulage of machinery and stores. Had this railway been in existence, the charges for the same haulage would have been £1,650. If the difference, £20,677 had been saved, the mine could have been worked at a profit, and some 300 additional men would have found steady employment there. Thus, giving to each adult miner four dependents, we see that the absence of this railway reduces the population of one district alone by some 1,500 souls. But, apart from passengers and mails, here are three sources of traffic - mining, timbergetting, and agriculture - from which competent authorities assert would come ample revenue to meet working expenses and interest on outlay. It has been stated in the local Parliament, and not denied, that the largest firm of mining engineers operating in Western Australia, who represent millions of English capital - I refer to Bewick, Moreing, and Company - have offered to build this line, to carry passengers and goods at Government rates, and, finally, at any time, to hand it back to the State on fair terms. It is understood that the State Government has also been offered a loan of the required capital at 3½ per cent., which is the existing rate for Government loans. But none of these proposals find favour with the State Legislature, for reasons which this House will readily infer. Eoi- instance, the State Premier, speaking in the local Assembly on the 20th August, having admitted that if he lived on the gold-fields he would support the railway, openly avowed his opposition to it, because any other attitude was not " compatible with my duty to my electors." His electors are Perth residents, and his Government is supported by other Perth and Fremantle members, whose electors also directly profit by the diversion of interState trade through Fremantle. These gentlemen do not disguise in any way the motives impelling them to resist the construction of this railway. As a specimen of the remarkable arguments by which the local Government attempts to defend its position, I quote this sentence from the same speech of the Western Australian Premier -

I do not know of any instance in any country not in Australia, nor in any country the size of Australia - where you will find two lines built for the express purpose of serving the traffic of the one locality.

Had this honorable gentleman, Mr W. James, taken the trouble to consult a railway map of Australia, he would have found at least two instances where separate lines " serve the traffic of the one locality." There is a clear case in New South Wales. That State built a line from Sydney to Bourke, which passes through the town of Blayney. It has also built a line from Blayney to Harden, which directly connects Blayney with the port of Melbourne. So, not only do two lines here " serve the traffic of one locality," Blayney, but one of them, though built by New South Wales, diverts traffic to the capital of another State. Again, the Queensland Government has extended a line from Rockhampton to Longreach, and a second line from Townsville to Winton, in the same district as Longreach, There is no attempt here to divert trade hundreds of miles out of its natural course to a favoured port. Whatever may be said of the Queensland Government, in extending its railways it appears to have held the balance fairly between rival seaports, giving to each that portion of the traffic of the interior which is its right by virtue of geographical position. The people of the gold-fields require no more from their State Government. They do not ask that Western Australia shall be as generous as New South Wales in constructing a railway which serves another State. If this line from Esperance to Coolgardie is constructed, the whole benefit of the trade will still be confined to Western Australia, and this benefit will keep pace with the growth of imports from the eastern communities. Honorable members may measure the justice of the claim of the gold-fields population by the arguments advanced against it. I have quoted the strongest of these arguments, and shown that it is in clear conflict with facts, which can be verified by a glance at any railway map of these States. It must be now tolerably clear that this is not a purely local grievance. The gold-fields community suffers, but so does every producer on this side who finds a market on the other. Even this Parliament has on its own part a right to complain. The Postal department is under our control, and we are justified in inquiring whether our mails and parcels are being conveyed as cheaply and as expeditiously as they might be. We have good grounds for objecting to the extra cost and delay of carrying our mails some 800 miles unnecessarily. If we had an ordinarily fast steamer service from Adelaide to Esperance, and this railway were in existence, mails could be delivered on the gold-fields at much less cost, and some 48 hours earlier than under the existing arrangement. Though I have detained the House to an undue and unusual length, the pleas which might be urged for the construction of this railway are by no means exhausted. Let us leave mails, trade, and traffic out of the question, and consider the matter as it affects humanity. Here is a community of 50,000 people occupying a new territory destitute of any natural attraction, parched during nearly half the year by the fierce heat of a semitropical latitude. Water there is none, except what may be conserved or obtained by condensation ; food is at what would here be regarded as famine prices. The people live in tents or iron buildings, which offer little or no resistance to the heat and dust-storms ; they are illsupplied with schools, and entirely destitute of the means of recreation available in cities. Conceive the sufferings of little children growing up under such hard conditions and amidst so much unavoidable discomfort. They are chained to the sunbaked plains, though within a few hours journey of the sea-board. The monotony of their lives must not be broken by a glimpse of the ocean, nor by a gambol in its surges, because the railway which would bring them to the coast might damage vested interests in Perth and Fremantle. I ask, must land values in the capital be kept up, even if the price be the lives of little children who pine away for lack of the recuperating breezes of ocean and mountain top 1 While disavowing the language of exaggeration, I do say that this is one of the effects of the policy which denies the goldfields population access to the sea-board. It is a policy worthy of Caligula or Nero, rather than of responsible statesmen in the 20th century. Whatever the result of this discussion may be - and I regret that the important and urgent questions absorbing Ministers' attention leave no room to hope for any immediate result - there is to me the consolation of knowing that I have discharged my duty. It has been shown conclusively, I hope, that the refusal of this railway so outrages the spirit, if not the letter of the Constitution, as to demand soon or late decisive action by the Commonwealth, and that a gross injustice is being thereby inflicted on thousands who have laboured and suffered for the cause of Australian nationality.







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