24th March 2011
PROPERTY RIGHTS AUSTRALIA
The administration of vegetation acts in Qld and NSW strips suspected clearing offenders of all normal civil rights.
Ashley McKay in his landmark case, after seven court appearances in six years and the expenditure of half a million dollars, had his case thrown out with crown witnesses providing inconsistent evidence.
A recent refinement in the armoury for the prosecution of these suspected environmental infringements is Habitat Destruction. In CQ recently a grazier was charged with clearing about 26 hectares of endangered brigalow. The prosecution indicated a possible fine of $16,000 and the best legal advice was to plead guilty. However, probably buoyed with the success of a similar tactic used in southern Qld, the charge was escalated to Habitat Destruction with a possible ten-fold increase in the fine. With little to lose the grazier decided to defend the charge. At $800 a day he got the services of an ex-DNR officer to check the GPS points. The elongated nature of the contested area meant that using standard deviation for error, the 26 hectares came down to just four. To contest habitat destruction, a witness with expert standing recognised by the court is necessary and another ex-DNR officer with these qualifications was located and employed at $250 an hour for the time he is away from his office. The area was not brigalow, but softwood regrowth with the original timber still in stick-raked heaps unburnt. When the grazier turned up in court with his expert witnesses and the expenditure of $35,000, the crown withdrew at the very last minute.
In a similar case in NSW involving the alleged destruction of a rookery, with the original timber long since destroyed, a possible seven years gaol sentence and crown witnesses giving inconsistent evidence, the prosecution withdrew at the second hearing at the last minute.
In a case in southern Qld, particular charges were withdrawn after crown witnesses gave inconsistent evidence. However all other charges proceeded. The defendant won in the Magistrates Court, won in the court of judicial review but lost in the Court of Appeal and lost Leave to Appeal to the High Court in a period of six years. Not only has he and his wife suffered trauma in the courts, after years of near crop failures this season he grew the best crop ever. Because contractors weren’t available, he had to purchase harvesting machinery. A small amount was harvested and stored but the rest was lost in the massive floods. He and his wife spent five weeks with water under the floor boards.
At last the road opened and on Tuesday he was at his shed preparing to load his stored wheat which is in danger of weevil damage when a vegetation officer with a warrant and an expert from the herbarium arrived. The grazier is now charged with assault and damage of government property.
For further information contact:
Ron Bahnisch, “Bower Park,” 290 Fairybower Road, Gracemere, QLD 4702
Ph: (07) 49 334 011 Mobile: 0409 334 211 Email: firstname.lastname@example.org
PRA is a non-profit organisation of primary producers and business people from rural
areas defending the rights of property owners