“The latest hearing in the on-going Spencer b. Commonwealth of Australia case was held on Monday 12 November in front of 3 judges including Chief Justice Keane constituting the Federal Court of Appeal. Peter Spencer was represented by barrister Peter King; the Commonwealth is represented by the Commonwealth Government Solicitor (CGS).
Peter Spencer has appealed a decision by Justice Emmett denying Spencer access to Cabinet documents as these documents are subject to “public interest immunity”.
The day was fundamentally about the Commonwealth of Australia opposing Spencer’s appeal on the basis that the evidence produced for the Appeal is not applicable.
This turned out to be a gruelling day.
Peter King started his oral submission and spoke for a long time… re-stating Spencer’s position that (in the light of the High Court decision), Spencer should have access to the cabinet documents he has requested.
Then Howard (for the CGS) went through Spencer’s statement of claim disputing King’s submission on points of law.
King then disputed Howard’s arguments, including putting forward the morality of the case. Peter King was very good in his oral submissions arguing his interpretation of two High Court precedence cases with regard to parliamentary privilege, he certainly has given the judges something to think about.
The 3 judges then reserved their decision – to be handed down at a later date. These 3 judges have previously (supported Justice Emmett and) ruled in favour of parliamentary privilege; whereas the unanimous decision of the High Court in September 2010 in Spencer’s case is that parliamentary privilege is not absolute and is open to discretion if it will result in a loss of justice to Mr Spencer. In effect the Federal Court judges are between a rock and a hard place. If they support Emmett and the Commonwealth – they are finding against the High Court decision.
To say the least, the decision of the 3 Federal Court judges will be interesting.
The tactics of the Commonwealth are obvious – with infinite resources the CGS can keep on putting up delaying tactic after delaying tactic to continue to frustrate and hold up progress of Spencer’s case in every way possible. And unfortunately, the law responds and deals with this matter very very slowly…. It can be seen that the Law (as a whole) only gets stirred into action (and becomes responsive) when there is real public pressure.”
Later published related discussions