Peter Spencer: Court diary

The case Spencer v. Commonwealth of Australia began being heard in the Federal Court, Sydney on the 24th November, described as the biggest property rights case since Mabo.  

This post will feature the daily updates that Ian Hampton has been providing for the first week of the court case which will continue in the comment section below.

Please also check out a web page set up for Peter Spencer - Peter Spencer versus The Commonwealth
and also the Facebook page - Support Peter Spencer & Australian Farmers


Peter Spencer's farm in the high country in New South Wales, fondly named "SAARAHNLEE",
a combination of letters from his children's names. He no longer owns this farm having lost it in 2010

Day 1 of the trial 24th November

The most important event today was the opening statement by Mr Kirk, the barrister for the NSW Crown Solicitor's Office.

Two things stand out - BOTH respondents (Commonwealth and State) are flatly denying the existence of any informal agreement or understanding between the Commonwealth and the State beyond the applicable legislation and relevant published intergovernmental agreements. The thrust of the rest of his statement was that the State had the ability to restrict Spencer's ability to clear timber on his land under legislation that existed before the Commonwealth involvement in native vegetation legislation after Kyoto, and that consequently Clause 51 (XXXI) of the Constitution (Commonwealth must pay just terms compensation for property taken) does not "come into play"...

From what I can see - neither Peter or Alastair were fazed by Kirk's opening statement.


Day 2 of the trial 25th November

In his opening statement, Mr Lenehan for the Commonwealth covered pretty much the same legal ground as Mr Kirk did the day before for NSW.

By contrast, in his oral opening statement, Peter Spencer started with the Magna Carta and traced the evolution of freehold title in Australia back to the foundation of Government in 1840 .

Spencer then went through the history of international, national and state government agreements and legislation linking environmental issues and native vegetation. Spencer traced a line of continuity from the First International Conference on Environmental Issues in 1950 and its Native Vegetation Advisory Workshop through to 2003. Important steps along the way included the 1972 International Conference Declaration of the UN on Human Environment, the 1992 Rio Earth Summit (the UN Framework Conference on Climate Change) where Australia signed the treaty, the resulting 1992 National Strategy for Ecologically Sustainable Development (signed by PM Hawke) and the 1992 National Greenhouse Strategy which was endorsed by the Council of Australian Governments (COAG).

In effect, the intention to take the benefit arising from the sequestration of carbon, through the native vegetation legislation of 2003 as the primary mechanism for meeting Australia's greenhouse gas commitments, was the logical outcome of the 1992 strategy.

So, the three opening statements have been completed - GAME ON.

Tomorrow morning the Judge will decide which documents from both sides are in or out. The afternoon will be taken up with the expert witness evidence of Dr David Evans for Spencer and by Mr Sturgess, a senior bureaucrat for the Commonwealth.




Peter Spencer and Alastair McRoberts boarding the train after Day 2

 

Day 3 of the trial, Wed 26th November

Peter Spencer had a good day in court today. Just as important, Peter is growing in confidence and really finding his feet as a self litigant.

The day started with the Judge expressing concern about the unavailability of former Howard Government Minister, Dr David Kemp when the Spencer team attempted to serve him with a subpoena last week.

The CGS and NSW Crown Solicitor then tried to "knock out" all of Spencer's witnesses with case law. Justice Mortimer adjourned the hearing to consider these submissions. She returned after a short break to confirm that the evidence of the two expert witnesses on the UNFCCC National Carbon Accounting System, scheduled for today could go ahead. The examination of these two witnesses - Dr David Evans for Spencer and Mr Sturgess for the Commonwealth went well.

Justice Mortimer will announce her decisions about the remaining witnesses tomorrow morning.

A long way to go - but definitely as good day for Peter Spencer.


DAY 4 of the trial, Thursday 27th  November

Justice Mortimer "knocked back" only one of Peter Spencer's nominated witnesses, in response to submissions from the Commonwealth and NSW Crown Solicitor to "knock out" all of them. This does not substantially affect Peter's case - good news.

Since then, Peter has been in the witness box. At the end of the second session, Peter was still being cross examined by the CGS (for the Commonwealth) and NSW Crown Solicitor. Consequently, we are not allowed to report on any of this until after he completes his evidence - scheduled to be lunchtime tomorrow.


DAY 5 of the trial, Friday 28th November

FORMER HOWARD GOVERNMENT MINISTER WILL BE IN THE WITNESS BOX NEXT WEEK

Peter Spencer was cross-examined by the two barristers for the Commonwealth Government and the NSW Government until the end of the afternoon session. The cross examination is now over. Unfortunately, we can't report on this yet because Peter is still under oath. He is returning to the witness box on Monday, allowed 15 minutes to provide corrections to any mistakes he may have made in his oral evidence.

Next week will be mostly taken up with witness statements and cross-examination.

On Tuesday, Justice Mortimer will announce which documents from both sides are admissible and which are inadmissible based on the arguments from the opposing sides.

The Court has ordered that Dr David Kemp, former Howard Government Minister for Environment and Heritage contact Peter Spencer about his availability to appear as a witness next week.

The team: the extended Kennedy family, and supporters Dan and Jeannie Hughes.




Previous related posts

PETER SPENCER NEEDS YOUR HELP

 

Peter Spencer: Farm associations where is your support now?

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Peter Spencer: Farm associations where is your support now?

Farm associations were very supportive of the Peter Spencer case back in 2010 but now at the very crucial time of the final court case starting November 24 2014 any support from these farm organisations is conspicuous by its absence.

Letter to the editor, The Land, Nov 6 2014

Wally Mitchell in his letter mentions the NSW ABC Country Hour interview with Hugh Nivison, Chairman of the Trust administering the Australian Farmers Fighting Fund (AFFF).

Recently in my role as chair of Property Rights Australia I was informed by a member who spoke with the AFFF secretary and that upon inquiring why AFFF was not backing the Peter Spencer case with funding was told that,

"they were prepared to support him but he to date had not accepted their offer”

The response from the Peter Spencer team upon being informed of how AFFF were deflecting any heat from their lack of action was,

"There has been no offer from AFFF to Spencer to resume funding of the case.  Spencer is providing some documents to AFFF relating to the case requested, by them. "

This is worst than just being unhelpful.

 

NFF president in 2010, David Crombie
photo sourced The Land

The 9th August 2010 media release by NFF president David Crombie, Farmers’ property rights under siege . Earlier in March 2010 David Crombie made strong statements in the article, Families and natural justice suffer as property rights usurped.  

“It’s a perfect scam where state and federal governments use their respective powers in concert to effect property takeover but avoid paying ‘just terms’ compensation. Enough is enough."

 

Peter Spencer needs your support, to learn how you can help please read the following article:
PETER SPENCER NEEDS YOUR HELP

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Peter Spencer: Finally will present his case

 

 

Peter Spencer will finally be allowed to comprehensively present his case to the court on the 24th November after over six years of overcoming many obstacles. If successful the case will set a precedent to make governments of all descriptions to think twice before the arbitrarily taking property rights

 

 

 

 

The case centres around the right of the Australian Commonwealth to acquire carbon credits from farm land, without compensating the farmers, or landholders. The 2010 Senate Inquiry found that the carbon credits available from the various States’ Vegetation Management acts were used by the Commonwealth to meet the Kyoto protocol.

Peter Spencer has been out of the media for some time as a result of a media blackout imposed by the NFF’s Australian Farmer’s Fighting Fund which was for a time funding him. Now with the end in sight the AFFF has withdrawn their funding.
 

 

Please follow [this link] and listen to the audio of the interview with ABC radio NSW Country Hour reporter, Michael Condon. 

 

Top ten tactics and tricks

The investment into coal seam gas projects is enormous. Try and get your head around the following figures:

SANTOS        GNLG project             $18.5 billion

QGC               QCLNG project          $20.4 billion

Origin              APLNG project          $23    billion

Arrow                                                  $15    billion

Photo sourced The Land, Shine lawyers, Glen Martin & Peter Shannon

Landowners would have to be naïve to believe that these multinational companies aren’t protecting this investment and that they will be looking after their own interests, not those of the landowner.

These are the top ten tactics and tricks used to manipulate the landowners into signing an agreement to allow the companies to proceed with these massive investments with minimal impediment for the coal seam gas company.

1.      Appoint and train the right land liaison officers. They will often be people that the landowner can relate to; that they don’t feel uncomfortable around. Most of the land liaison officers will not have had all the information about the project disclosed to them as well but their role is to get the landowner on side and engender trust.

2.      Broadly describe the project activities, reluctantly give any detail and avoid mentioning of any impacts. The overall project is not disclosed but broken down to stages or individual activity. Non-disclosure creates problems for the landowner in that they don’t know the full impacts when they enter negotiation and hinders planning for future farm management.

3.      Conquer and Divide. Refuse to deal with neighbouring farmers who wish to negotiate collectively. Try and keep farmers from any outside support and then having isolated them try and use peer pressure such as saying your neighbour has signed up.

4.      Take every opportunity to bag lawyers; imply that lawyers are only in it for the money and that the money is better off in the landowner’s pocket. Offer a token lawyer fee to the landowners as an enticement not to consult with a lawyer. Landowners need to keep in mind that contracts are not prepared by the CSG companies for their benefit.

5.      If the landowner retains a lawyer actively use the land liaison officer to keep open a separate line of communication to try and gain concessions from the landowner without the lawyer’s knowledge and ability to give advice.

6.      Try and make the landowner to feel obliged to cooperate with the company. Do favours for the landowner and also attain small seemly inconsequential commitments from the landowner. Work on the bush ethic that your word is your bond but landowners will later learn that any verbal agreement made by the company representatives is worthless.

7.      Use consultants and junior employees with no real authority. If verbal enticements are made move them on or terminate their employment so that the company can later distance itself from fulfilling any verbal undertaking. Keep the landowner from contact with more senior management.

8.      Make use of time to its greatest advantage. Common tactic is to create urgency to a completed agreement; hustle the landowner along, prevent from giving the agreement any depth of thought, imply that the landowner is selfishly holding up an important project. Another trick is to have short deadlines that include public holidays and the Christmas, New Year break when advisors such as lawyers, accountants and valuators are most likely not available.

9.      Move to a mining register conference as soon as possible to apply pressure and intimidate the landowner to sign up. If the landowner resists the pressure by the CSG company threaten to take them to the land court.

10.  Close the deal. The CSG company will have the land liaison officers go to great lengths to get a signature on a contract. They may travel great distances or pay for flights for an absentee landowner to sign up.

 

These ten points were adapted from a presentation given by Glen Martin of Shine Lawyers at a CSG information seminar at Wandoan on the 4^th December 2013.   

Related articles


Living and Working in a Gasfield .

 

CSG - It's time to recognise farmer stress

 

Forgive our discontent

It's time to recognise time

by Kerry Ladbrook

 

Photo: Wandoan South sub station

How do Powerlink Qld and many of the Coal Seam Gas Companies recognise landholder’s time impacted by their projects in order for these corporations to meet deadlines?  They don’t, but under legislation landholders must engage with them.

How do Government Corporations such as Powerlink Qld recognise their employees meeting deadlines? By paying Staff Performance Pay Bonuses and allowing them to share in a Gainsharing Pool of money if their projects come in under budget. 

In the North West Surat Basin, there has been more “give” than “take” by landholders impacted by a web of high voltage transmission powerlines for the sole benefit of the coal seam gas companies.  Powerlink Qld is undertaking these contracts ignoring landholder input into the proposed study corridors in planning for this infrastructure. Due to inappropriate locations, time wasted by Powerlink employees has been enormous and costly to the Qld Government, CSG and Rural industries.

While Powerlink employees continue to be paid for their mistakes, landholders have to endure even greater impacts upon their time. Farmers are running a business and should not be placed in the position of de facto charities for the benefit of multinational companies.

Time impacts on our business equates to two days per week since first engagement with Powerlink 16 months ago with agreement yet to be reached.  How many family businesses can afford to carry this type of impact without recompense?

The Community Designation Process that Powerlink Qld is allowed to follow is highly pressurised and with less rights than CSG legislation as it comes under the Acquisition of Land Act 1967.

It’s more than time that landholder’s time is recognised. The Queensland government needs to look to positive legislative change for landholders. Recognition of landholder time as separate to other compensation needs to occur.

Allowing for full cost recovery will result in a greater willingness to address issues from the outset.  

First published as a Letter to the Editor in various rural newspapers.

Related articles:

Petition against abuse of power by Powerlink

Power price rise link to Powerlink 

Scrutiny needed for Powerlink projects

State Corporation, Powerlink vs Woodduck Landholder Group

Forgive our discontent

By Veronica Laffy

 I write in response to the Weekend Australia front page story, Good times flow from well of discontent, on the wonderful relationship and excellent compensation enjoyed by Peter Thompson with Origin Energy in Roma.

As a landholder involved in ongoing negotiations for access with QGC, I can assure you that the deal struck by Peter is one that is rare and certainly not on offer to most landholders.

 

Photo: Laffy family on break from the farm

 

$3000 per well is certainly no supplement to our existing income, and doesn't even come close to covering our time investment in monitoring company activities on our land, were it to eventuate.  The company refuses to pay for landholder time involved in negotiating access - landholders are in fact the only party involved in the process who aren't remunerated for their time.   Land access agents, government officers, solicitors, experts, valuers -all are paid in this process.   Would you work for free to facilitate the access of your backyard for hundreds of strangers over an unspecified time frame?  Landholders are being forced into business agreements spanning decades, we have limited knowledge of the real life impacts, although given the numbers of people on Peter Thompson's property amenity and lifestyle impacts alone seem quite substantial.  That's before we even talk about wholesale removal of water and the millions of tonnes of salt THAT THEY STILL DONT HAVE AN EFFECTIVE USE FOR.  It is looking increasingly as though salt will be buried in landfill.  That's MILLIONS OF TONNES.  We have the most to lose and the least to gain, is it any wonder we are concerned?

We run an organic livestock enterprise modelled on the likes of Joel Salatin's Polyface Farm.  We have spent the past five years achieving organic certification and getting our property to a place where we can start to implement some of his practices.  Our business model will not coexist with the rollout of wells, roads, chemicals, daily traffic, and methane venting and flaring.  The impacts are too great - we would need to employ 2 full time staff just to monitor the traffic and ensure bio security alone.  We have 6 children, one of whom has Down Syndrome - the impact on our ability to have a safe haven for him and our other children here on our farm is enormous.  We would no longer know who was here, when they were here, if they were "safe".  Living in a rural or remote area has difficulties, but one of the great advantages is knowing who is and isn't on your property, this would be gone for the rest of my children's childhood.

We are being constantly threatened with land court.  We have neighbours in the same position who could handle the stress no more and signed agreements for laughable sums because the cost and stress of a possible court battle was too great.  They now live on an industrialised farm with constant traffic, random access, broken company agreements and no review for 15 years.  There is no company operating that will agree to a one year review.  They will just threaten court if you don't agree to their terms.  Intimidation and dictatorship 101 is the norm, particularly with QGC.

So forgive us for seeming to appear discontent.  We are not "left wing greenie activists”.  We are no one and everyone.  We are the common average Australian; having a go; taking a risk.  We are an average family "negotiating" against the might of a multinational corporation and a State government.  People like Peter Thompson are promoting something that is not the norm in this CSG rollout, but rather the rare.

 

Previously published related articles

 CSG - It's time to recognise farmer stress

Living and Working in a Gasfield

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