The following letter which appeared in the Adelaide Register of 8 April 1912 has been referred by the Secretary to the Department of Home Affairs to me for advice:

Prime Minister Fisher recently remarked that in his opinion 'there would be no limit to the railways in Australia once they began to develop the country, and the people grasped the possibilities of the so-called desert parts of Australia'. This is all very well, and I for one quite agree with the soundness of Mr Fisher's statement. But what we want in the meantime is concentrated attention on the necessary consideration for construction of the two transcontinental lines (being the first undertaken by the Federal Government) on a constitutional basis. I am of opinion that this aspect of the question, in the absence of an Inter-State Commission, has been entirely lost sight of. Sections 98 and 99 of the Com-monwealth Constitution read as follows:

'98. The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.'

'99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.'

Railways are the foundation, the very essence, of interstate trade and commerce, and to whatever place a railway is made it facilitates trade and commerce in Australia, with a contrary effect where they are not made. This being so, and taking the two sections of the Constitution quoted as one, I submit that if the Kalgoorlie to Port Augusta line is carried out as at present proposed, it will be done in violation of the Constitution, because it will give preference to the States of South Australia, Victoria, Western Australia, and New South Wales as against Queensland. But there is a way out of this difficulty, and a very easy one, and that is to simultaneously construct a line from (say) Tarrawingee or the South Australian border to Wompah, on the Queensland border. This would give Queensland the opportunity of linking up her system and completing direct east to west transcontinental communication, and place her on an equal footing with the other States. Now, as regards the north to south transcontinental line, if my contention holds good in the one case it applies equally to both, and the Federal Government cannot show preference to Queensland by constructing a line from Pine Creek to the border of that State instead of making it direct from Pine Creek to Oodnadatta. The States, having no such restriction over interstate commerce as exists in the Commonwealth Constitution, can run their railways where they like to link up with other States; hence we see the New South Wales and Queensland authorities putting their heads together to divert the north and south transcontinental line from its proper course for their mutual benefit. But the Federal Government cannot lend itself to any such State enterprise, and should carry out their compact with South Australia without further delay or hesitation.

The letter contends that if the Kalgoorlie to Port Augusta railway line is carried out as at present proposed it will be done in violation of the Constitution because it will give preference to the States of South Australia, Victoria, Western Australia, and New South Wales as against Queensland.

I am of opinion that the contention of the writer is not well founded. The Kalgoorlie to Port Augusta Railway Act is a railway construction Act and is not a law or regu-lation of trade, commerce or revenue within the meaning of section 99 of the Constitution.

I am of opinion also that the fact that a railway line to be constructed by the Com-monwealth is confined to two States does not amount to a preference under the Con-stitution to those States as against the other States or any one of them.

[Vol. 10, p. 70]