Peter Hobbs, The Buloke Times

Calling a spade a spade is to speak plainly without avoiding unpleasant issues or put another way calling it as it is without beating about the bush that is, speaking truthfully.

During my fifty years of teaching, I had the privilege of dealing with a plethora of different individuals including the twenty-second Governor General of Australia, Sir William Deane, when acting as a Master of Ceremonies for a school anniversary, and recalcitrant teenagers, all of who were on court orders when principal of a reform school. I mention this because I believe I am reasonably well placed to accurately judge a person’s character.

If I was asked, and I have been, to nominate my choice of a typical Aussie, one who has worked his guts out, speaks openly and truthfully, and defies the adage “In the race of life, self – interest is the winner”, my answer is unreservedly Jim Hepworth.

In my five years in Donald, I had a fair bit to do with “Spud” at family functions, he being my wife’s first cousin, and on other occasions where his opinion and advice was underpinned by vast experience and common sense. I well remember visiting him at his Litchfield property with my eldest daughter who was but three years old at the time. She asked Spud how to catch yabbies and his instant reply was to stand by the nearby dam and make a sound like a fresh piece of meat. She spent the next half an hour standing on the edge of the dam making weird high-pitched noises. For the record, she did not catch any yabbies.

“Farms for Food”

It therefore did not surprise me to learn that Jim had spoken openly in a “Farms for Food” video about rural properties being devastated by the likes of power lines and mineral sand mines. He concentrated on three major issues which have been the subject of endless commentary including poignant letters to the Editor in this tabloid.

The first is the invasion of arable land which will reduce the capacity to grow the primary products for food production; the second being the thoughtlessness in procuring land that has been with families for generations; and the third and perhaps the most devious is the government’s divide and conquer tactics resulting in friendship and harmonious neighbourhood destruction.

I am not, and have never been, a farmer, but I did cart wheat for Alec Boak for three years during the extended school break in December and January in the early 1970s. My education was enhanced and enriched by the many chats I had with farmers while waiting in queues at the silos and never did I hear a cross word. The atmosphere oozed friendship with helpful advice being freely given when requested. Those memories override the vast majority of memories I had as a teacher.

I believe it is worth analysing and providing some suggestions in regard to the plight of farmers losing land, pride and friendships due to the thoughtlessness, selfishness and devious tactics of governments.

But before I do, I must question why the concerns adumbrated above have been, to my knowledge, brought to the public’s attention by farmers and other concerned community voices vis-a-vis those in local public office.

The Buloke Shire encompasses 8,000 square kilometres and hundreds of farms. It comprises three wards, Lower Avoca, Mallee and Mount Jeffcott each with two councillors. Have any of these councillors gone public with commentary or have they taken any action on this matter, or do they live in fear of the Victorian Labour Government which is using “Big Brother” tactics to keep a watchful eye on councils? Ironically, two of these councillors live just half a dozen Jimmy Brennan drop kicks from Spud’s farm.

Silos

And let’s go back seventy-five years when another farmer did the work of those in authority. Silos signalled the most significant change in farming methods since the harvester, the transition from bagged wheat to bulk handling. Many farmers were opposed to bulk handling while others supported it. Opposition also came from grain buyers and bag merchants. Again, authorities such as the Grain Elevators Board did little to assist the dispute. The Litchfield silos, just one Jimmy Brennan drop kick from Spud’s farm, operated without friction due to the intervention of a legendary farmer, Tom “Kelly” Milne my wife’s uncle.

According to Frank “Father” Dean, an iconic Donald publican, Tommy was built like a prize fighter, and like Spud, possessed that true Aussie sense of humour and had a heart of gold. Due to his character and the way he approached life, “Kelly” developed goodwill between those who carted wheat to the Litchfield silos, a goodwill that I experienced twenty years later when I carted wheat to the same silos.

Please take just a moment to raise a glass, a cup or raise your hat to two legends of the Donald District, Jim “Spud” Hepworth and Tom “Kelly” Milne.

What can be done?

In analysing this current unsavoury situation, it seems that the problems and threats to farmers and the harmony to farming communities are well established and documented. The question if not the conundrum that follows is what can be done to allay the situation?

There have been protests, for example, in Ballarat, Melbourne and Canberra, the latter organised by the National Farmers’ Federation but, according to its President, David Jochinke, our Prime Minister, relevant Senior Labour Party Ministers and energy representatives, failed to meet with the protesters, which was the same result in Ballarat and Melbourne. Apparently further protests have been planned.

These protests are taking farmers from their land which is costly, which skews the cost-benefit of these protests heavily in favour of cost. I believe other measures are needed and these need to be underpinned by solidarity and strong leadership. The National Farmers’ Federation, formed in 1979, purports to be the single national voice for Australian farmers. It is an advocacy organisation.

More is needed. Farmers need to know, if they don’t already, the process that will be employed to usurp their land and, more importantly, what can be done to protect their land.

Rewiring

Rewiring Australia is the Federal Government’s program to modernise the electricity grid and upgrade transmission infrastructure, referred to as net-zero. Unfortunately, the government has not provided a specific path to net-zero but the research project Net Zero estimates that approximately $7 – $9 trillion will have to be invested by 2060 with $1.5 trillion needed by 2030. Sky News investigative journalist, Chris Uhlmann, has produced a program entitled “The Real Cost of Net Zero”, which is compulsory viewing.

The Australian Energy Market Operator released the Integrated System Plan this year providing a twenty year forecast of the National Electricity Market’s infrastructure needs. By 2050, the estimate is 10,000 km of transmission lines. A bill to establish a Net Zero Economy Authority has passed through the Senate. Transgrid has welcomed this as it accelerates the superhighway of transmission lines. That is why farmers’ land is needed and why measures are now in place to procure that land.

A further concern for farmers is that the Federal Government is working with state and territory governments to expedite this energy transformation.

Best locations

In Victoria, the Australian Energy Market Operator (AEMO) and AEMO Victorian Planning (AVP) are the government instrumentalities that select the best locations for transmission lines. AEMO forecasts national transmission needs; AVP identifies the most suitable project to meet these needs including a proposed location, and awards a contract for the project’s construction, ownership and operation. The successful company then designs the project which involves selecting the location of transmission lines taking into account the impact on communities, landscape and cultural heritage. Importantly, this process involves consultation with communities and landholders to assist with designing the project and minimising the impact on individual properties. AusNet Services owns and operates the electricity transmission system in Victoria and supposedly works with landowners to maintain the corridors of land on which transmission lines are built.

Understanding

Details such as this need to be understood by a body representing farmers.

“Spud” refers to friendship and neighbourhood destruction which is being brought about by the age old tactic of divide and conquer. This can be effectively counteracted by the adage, “United we stand, divided we fall”, which translates into unity being a great strength, whereas division is a recipe for defeat.

Unfortunately, some farmers have created division by accepting payment for hosting transmission lines. They will enter into a License Agreement, Access Agreement or Option for Easement Agreement which provides access to the landholder’s property and exclusive rights over the property. Many of the developers are using non-disclosure agreements which prevent consenting farmers from talking to their neighbours promoting a division in the farming population by destroying friendships.

Non-disclosure agreements come with a timeframe usually between 1 and 5 years. They are civil contracts and breaking one is not a crime and will not result in jail time, but the party being harmed may seek financial compensation.

It seems then that a number of farmers are under the thumb of developers but this is not doomsday. If a transmission line easement, that is the corridor of land on which transmission lines are built, is to traverse a number of properties adjacent to one another, say twenty, and five of those landholders have agreed to host transmission lines, that leaves fifteen who have not, and can keep up the fight and make it extremely difficult for the transmission lines to progress.

The fight

So, who is this fight against how can it be fought and who is going to fight the fight?

First, whoever is going to be empowered at a state level to erect transmission lines, that is the person or persons who will arrive at a farmer’s front gate greeting the farmer with the information that a parcel of his or her land is going to be legally usurped for the erection of transmission lines.

The farmer will obviously be taken aback and may well respond by saying that this decision will be appealed to VCAT. However, no farmer can now go to VCAT because of a non-appeals process brought down by the Victorian Labor Government. It seems that at this point the common view is that all is lost.

I have had extensive dealings with matters involving ACAT, the ACT equivalent of VCAT. These bodies are what I refer to as “clayton” courts. In reality they have limited clout and to close the avenue of appeal to VCAT should not be of concern to affected farmers. Victoria’s peak farming body, another advocacy body, the Victorian Farmers Federation, has also lamented the inability of appeal to VCAT, the only avenue of appeal left being to the Victorian Supreme Court; that is if a legal loophole can be found and if the appellant can afford costly Supreme Court action.

Loopholes

Loopholes can be found. For example, is there evidence that the nominated location of the transmission lines is the most suitable, has the impact on affected communities and the landscape been thoroughly assessed and documented? What evidence is there that the cultural heritage of the area has been considered and protected and has productive consultation with affected landholders been conducted in the presence of experts of the landholder’s choice and at the expense of the developer?

It might also be salient to investigate the circumstances under which money was thrown at those who agreed to be hosts to transmission lines on their properties. Were they properly advised of the conditions of the contract they were entering or were they advised to seek legal opinion and on what basis was the timeframe of the contract decided upon?

It is not just at state level that this fight needs to be fought. The whole shooting match emanates from the Federal Government.

Adage

I refer to yet another adage, “My home is my castle” or in Spud’s case, “My farm (which is his home) is my castle”. This means that people have the right to do what they wish in their own home (or farm) and other people including the government have no right to interfere in people’s private lives. Put another way, everyone has the right to defend their home. It is therefore difficult to understand how non-appeals legislation made it through the Victorian Parliament. There must be some gutless wonders whose workplace is Spring Street.

In 1997, one of the greatest Australian films ever made, shot in eleven days and on a budget of $750,000 portrayed Australians’ self-image and the place of working-class Australians in modern day Australia. The plot of “The Castle” is an Australian family which successfully challenges the compulsory acquisition of their land by the Victorian Government to expand Tullamarine Airport.

The legalities underpinning this successful challenge by a constitutional barrister in the High Court warrant attention. The relevant section of the Australian Constitution referred to is Section 51 (xxxi) which states, “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:….the acquisition of property on just terms from any state or person for any purpose in respect of which the parliament has power to make laws….” The critical caveat is that the Commonwealth has the power to make laws for acquiring property but only on “just terms” referred to as the “just terms” provision.

A case therefore needs to be evidentially mounted to demonstrate to the High Court that the legislation for the Federal Government to have the power to acquire property was not on just terms.

First point

The first point to be made is that Commonwealth legislation would only be valid if it could be shown that it was enacted under Section 51 (xxxi). However it would be invalid under Section 51 (xxxi) if it failed to provide just terms. So, was Commonwealth legislation to acquire land enacted under Section 51 (xxxi) and did this legislation provide provision for just terms and if so what were they? That is, the Commonwealth should be brought to account by demonstrating just terms. It should also be noted that the just terms condition was put in place to ensure the Commonwealth did not abuse its power of procurement.

Expensive

The landowner can make the matter of land acquisition extremely expensive and if this is pursued by a significant number of landowners, it may just make the entire project unviable.

I appreciate it is not the intention of the majority of landholders to agree to acquisition of their land, but what follows is a suggestion to make acquisition untenable.

Section 54 (1) of the Just Terms Act (1991), “Entitlement to Just Compensation” states, “The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land.”

Compensation

Sections 55 to 62 inclusive of the same Act detail the relevant considerations in determining the amount of compensation. If I was a landholder seeking compensation, I would claim the following, they being my take on compensation:

• The market value of the land being acquired on the date of its acquisition.
• The diminution of the value of the property due to the loss of the land being acquired.
• The loss of the value of crops that could have been harvested on the land being acquired and the land in proximity to the transmission lines due to safety regulations. This value should be calculated for the estimated life of the transmission line.
• The value of the reduction in the carrying capacity of the farm due to the acquisition of the land. This value should be calculated for the estimated life of the transmission lines. Compensation for relocation expenses, including inconvenience, for the farmer and family if this is necessitated during the construction process. It is noted that compensation for such relocation can be up to $75,000.
• The loss of any definable income during the construction process of the transmission line.
• Reimbursement of legal costs incurred in connection with the acquisition of the land.
• Reimbursement of fees of a qualified valuer incurred in connection with the acquisition of the land.

Fundamental rights

Common law dictates that judges rely on substance when interpreting the Constitution. Fundamental rights are carefully protected and this applies to property rights as well as any other rights. Our Constitution puts conditions on the Commonwealth’s right to expropriate property and it is therefore highly unlikely that the High Court would permit the Commonwealth avoiding those conditions.

This is all very well but the all-important question is, who will take up the cudgels and fight the fight?

Two-pronged

This, to me, is two-pronged in that there needs to be an advocate for the disillusioned farmers and then there needs to be a person or persons with the clout and/or expertise to take the matter to a body to have the matter resolved in favour of the farmers.

This article has already mentioned possible advocates in the personage of the Victorian Farmers Federation (VFF) and the Australian Farmers Federation (AFF), but they seem to be content with organising protests.

Then there are the various levels of government.

Dr Anne Webster, Federal Member for the Mallee has certainly demonstrated her support by quoting “Spud” and adding her own two bobs worth in Federal Parliament. I am not aware of any support from Victorian Parliamentarians, and the Buloke Council cannot organise the repair of pot holes in local roads let alone take this mammoth matter on board. As long as the proponent political party has a majority in parliament as the Labour Party do in Victoria and nationally, their actions will not be reversed.

Individual farmers like “Spud” can have their say as he has so successfully done, but he cannot be expected to be an advocate on behalf of all affected farmers.

Farmers do not have a union as such, so I believe it is up to the AFF and the VFF to step up to the plate and take some real action on behalf of the affected Victorian farmers. They would need to engage a constitutional law firm to take this matter directly to the High Court and pay for the legal costs, which could be somewhat offset by the State and Federal National Parties and the Buloke Council. In that way a number of organisations can be seen to help what “Spud” correctly calls the “….greatest naturalists in the world.”

This article appeared in The Buloke Times, 12 November 2024.
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