Update November 30 - A new post where daily updates of the court proceedings by Ian Hampton. Please go to Peter Spencer: Court diary
by Ian Hampton, Cooma, on behalf of Peter Spencer
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| Tony Abbott as opposition leader at the Peter Spencer farmers rights rally February 2010 photo sourced farmonline |
Peter Spencer will need financial assistance to
enable his “day in court”. After 8 years
of effort, countless directions hearings and a notable success in the High
Court of Australia in 2010, his case Spencer v. Commonwealth of Australia will
be heard in the Federal Court, Sydney from the 24 November this year.
Spencer has done his homework and believes he has
the ammunition to prove his case, however the problem is that the Australian
Farmers Fighting Fund (AFFF) which has been financing Spencer’s courtroom case
in the Federal Court has withdrawn its funding with the finish line in sight. The AFFF have offered no coherent reasoning
for this withdrawal of funding and actually state that they are still
considering the issue, however the time is now and Spencer needs funding to
continue.
Spencer’s immediate problem is that he is required
to pay up-front costs including the expenses of the witnesses he calls, filing,
record keeping, printing and stationary costs.
At this time his own finances are exhausted because of the eight year
war of attrition he has fought against the might of the Australian Government
Solicitor representing Australian Governments of both major parties. The other
respondent to the case is the Crown Solicitor’s Office of NSW representing the
NSW Government.
As discussed below, this is enormously important
for farmers directly affected by native vegetation legislation, and indirectly for
all private property owners.
BACKGROUND
Many regional people will remember Peter Spencer's
52 day hunger strike in late 2009 and early 2010 over farmer's property rights
and its link to Australia's climate change commitments. The hunger strike led to a more than 3,000 strong
farmers rights rally in front of Parliament House in February 2010 and the Senate Inquiry
into Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures later in the same year.
Spencer’s case and the hunger strike arose out of
his inability to properly farm his property "Saarahnlee" at Captains Flat near
Cooma, NSW following imposition of more stringent native vegetation laws by the
NSW Government in the early 2000s.
IMPORTANCE OF THE CASE
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| Alan Jones with Peter Spencer outside Parliament House, Feb 2010 photo sourced, Farmers’ fight for rights won’t end with protest |
If Spencer wins, the likely outcome is that the
case will be treated as a test case which should result in a flow on of
compensation to the thousands of Australian farmers who have been similarly
affected by the imposition of native vegetation legislation after the meeting of the Kyoto Protocol target in 1999.
Further, Spencer v. Commonwealth of Australia is
the most important property rights case to be heard by any Australian court
since Mabo. If Spencer succeeds this
case will re-assert the primacy of the Australian Constitution over the
on-going erosion of private property rights by Australian Governments of all
persuasions at all levels of government.
CAN SPENCER WIN?
Yes, if the case is truly heard.
Spencer’s case hangs on Section 51(xxxi) of the Australian
Constitution which allows the Parliament to make laws for 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
issue is that while the Commonwealth must pay compensation, the States are not
required to. The basis of Mr Spencer’s
claim is that state and federal governments colluded to introduce land clearing
legislation to lock up carbon on Australian farms through native vegetation
legislation so Australia could meet carbon targets in the Kyoto protocol. To win, Spencer must prove the intent of the
Commonwealth to obtain carbon credits enabled by the “Australia Clause”
inserted into the Kyoto Protocol Agreement in 1999, orchestration by the
Commonwealth of the imposition of native vegetation legislation by the NSW
Government (in Spencer’s case), and that the Commonwealth actually obtained
gain through the resulting carbon credits which are clearly shown in the IPCC
carbon accounts following application of the native vegetation legislation. The IPCC accounts clearly show that these
carbon credits have enabled Australia to meet its carbon targets set in the
Kyoto protocol. In essence this is
Spencer’s trump card because it can be clearly shown that the Commonwealth has
gained through the stored carbon.
The more important issue is that THIS IS A CASE THAT MUST BE HEARD. This is a once in a generation opportunity
for the courts to reassert the primacy of the Australian Constitution over the on-going
machinations of Australian Governments at all levels to restrict and control
private landowners use of their land.
HOW TO ASSIST
The NSW Regional Community Survival Group Fighting
Fund account is now dedicated to assisting Peter Spencer’s court case.
The RCSG is based in Tottenham NSW, and is an incorporated not for profit group
with a long history of fighting for farmers rights and assisting farmers.
Electronic transfers to
the "Fighting Fund" can be made to the following account:
BSB
032646 Westpac Dubbo
Account
No 494974
To enable record keeping - please “label” the transfer with your
name. If you want a receipt – send either an e-mail or fax to Lesley
Hillam -
fax
number 02 6892 4449
***************
Property Rights Australia will also accept a cheque in the mail payable to PRA Fighting Fund Account. Please include a note that the funds are earmarked for the Peter Spencer's court case and a return address so that a receipt can be issued.
Send the cheque to PRA Office PO Box 609, Rockhampton Q 4700 and the office will forward the funds on.
UPDATE # 1
On Monday 10 November - Peter Spencer will submit his list of witnesses with the reasons why they are important to the case.
On Wednesday 12 November - Peter Spencer will appear before Justice Mortimer to argue the reasons why he wants to call the witnesses.
UPDATE # 2 Monday 10th November
The hearing on Wednesday 12 November will be at 2:30 PM in the Federal Court, Queens Square CBD Sydney before Justice Mortimer. Peter Spencer will be arguing the reasons why he wants to call the witnesses on his list. We can anticipate that the Commonwealth and NSW Government Solicitor will be opposing most if not all of them.
The hearing on Wednesday 12 November will be at 2:30 PM in the Federal Court, Queens Square CBD Sydney before Justice Mortimer. Peter Spencer will be arguing the reasons why he wants to call the witnesses on his list. We can anticipate that the Commonwealth and NSW Government Solicitor will be opposing most if not all of them.
UPDATE #3 Tuesday 11th November
Tomorrows Witness Application Hearing has been delayed, and the hearing is now SET TO START AT 4:30 PM.
Tomorrow is not the start of the trial, but it is nevertheless a very significant day. By now, those that Spencer wants to call as witnesses know who they are, and you can bet that the Australian Government Solicitor (for the Commonwealth) and the Crown Solicitor’s Office (for NSW) will be going all out tomorrow to have them all struck off the list.
Win, lose or draw, one of the outcomes is that the Judge will have to read through the reasons WHY Peter Spencer wants to call each one. In other words, the witness list and Spencer’s reasons will paint a picture for the judge of the parts played by all of these “worthies”.
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