Sunday, 30 November 2014

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


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


  1. UPDATE, Day 6 of the trial, Monday 1 December

    This morning, Peter Spencer had an opportunity today to correct any inconsistencies that came up in his examination last week. Peter had been under oath since last Thursday morning through to this morning. He coped with the grilling from the respondents’ senior counsel barristers who were determined to try and upset him.

    Proceedings continued with three witnesses called by the State being government department employees. The cross examination of these witnesses was completed before the lunch break and the issue about the issued subpoena for Dr David Kemp was discussed.

    Justice Mortimer issued an Order that former Howard Government Minister, Dr David Kemp appear as a witness.

    The order followed a series of events:
    • A subpoena was issued to Dr David Kemp dated 21 Nov, 2014. The attempts to execute the subpoena at that time failed when Dr Kemp’s office in Old Parliament House was approached.
    • Last week, Justice Mortimer expressed her concern to the Commonwealth’s barrister about their knowledge of the situation. At the time making it clear that Dr Kemp’s availability was no reflection on the Australian Government Solicitor (AGS).
    • The AGS indicated that it had been in contact with Dr Kemp.
    • On Friday an order was made that Dr Kemp contact Peter Spencer as soon as possible.
    • This morning Mortimer J was informed by submissions that Dr Kemp had not made contact with the applicant and sworn affidavits containing a number of events showing the difficulties while trying to serve the subpoena were handed to the Judge.

    After some deliberations with the parties Justice Mortimer adjourned the Court hearing for 1½ hours while she reviewed the reasons for Dr Kemp being called as a witness.

    Justice Mortimer returned and made orders:
    1. The subpoena issued to Dr David Kemp dated 21 November 2014 be set aside.
    2. Dr David Kemp attend at the trial of this proceeding on Thursday 4 December 2014 at 10.15 am, at Court 22B in the Federal Court of Australia, Law Courts Building, Queens Square, Sydney 2000.

  2. UPDATE, Day 7 of the trial, Tuesday 2 December

    Today started with the Commonwealth and State putting forward their oral submissions for not allowing around 40 of Peter Spencer's 200 documents. The main argument put forward by the respondents was that the documents should be removed because they are irrelevant. Peter Spencer was then given about 2 hours to argue the reasons why the documents should be allowed.

    Both sides are now waiting for the Judge's decision about the documents which is expected to be on Friday.

    The program for the next two days is as follows:

    The first witness will be Brian Plummer, a Tottenham farmer.
    Mr Plummer will be followed by Mr Charles Armstrong and Mr Mal Peters, both former Presidents of the NSW Farmers Association and the three valuers - Mr Colin Davies for Spencer, Mr Bernie Sullivan and Mr Robert Connolly for the respondents.

    Dr David Kemp - scheduled for 10:15AM
    Dr Alan Moran, former Director of the Institute of Public Affairs as an expert witness for Peter Spencer

  3. UPDATE, Day 8of the trial, Wednesday 3 December

    Tomorrow morning at 9:30AM, Federal MP Mr Bob Katter will hold a press conference in support of Peter Spencer at the entrance to the Federal Court building in Queens Square, Sydney.


    Today’s hearings included the witness statements and cross-examination of Brian Plummer, a Tottenham farmer, two former Presidents of the NSW Farmers Association – Mr Charles Armstrong and Mr Mal Peters; and three valuers – Mr Colin Davies for Spencer, Mr Bernie Sullivan and Mr Robert Connolly for the respondents.

    The morning testimonies by Mr Plummer, and the two past presidents of the NSW Farmers Association combined to describe a clear picture of the effect of the Native Vegetation Legislation on NSW farmers.

    There was some confusion with the documents filed about the valuation of Spencer’s property Saarahnlee, because unfortunately Peter Spencer was not aware of a new valuation being filed. The evidence of Mr Davies will continue on Thursday morning.

    The valuer for Peter Spencer, Mr Colin Davies, will complete his evidence.
    He will be followed into the witness box by Dr David Kemp, who was the Minister for Environment & Heritage in the Howard Government at the time of the proclamation of the 2003 Native Vegetation Act.
    Dr Kemp will be followed by Dr Alan Moran, former Director of the Institute of Public Affairs as an expert witness for Peter Spencer.

    It is anticipated that Justice Mortimer will announce her decision about the admissibility of the trial documents of evidence submitted by Mr Spencer.

    If you can get along, there are two sessions each day from 10:15AM to 12:15PM, and from 2:15 to 4:15PM.

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  5. UPDATE, Day 9 of the trial, Thursday 4 December

    The major events at the Federal Court Court, Sydney today were:

    • A visit to express solidarity for Spencer’s case and media conference by Federal MP for Kennedy, Mr Bob Katter
    • Completion of the evidence by valuer Mr Colin Davies
    • Testimony and cross examination of Dr David Kemp, former Minister for Environment & Heritage in the Howard Government at the time of the proclamation of the 2003 Native Vegetation Act.

    Justice Mortimer announced her decisions about which of the trial documents submitted were admissible. Peter now going through the list.

    The evidence phase of the trial is now complete. Spencer and the team are now working on his final oral and written submissions.

    The presentation of the final oral submissions by the respondents will commence with that of the AGS (for the Commonwealth) on Tuesday morning, to be followed by the NSW Crown Solicitor and then Peter Spencer.

  6. UPDATE, Friday 5 December

    Bob Katter endorses Spencer

    Outside the Federal Court Building, Mr Katter said:

    "Today the question is: who owns the land, the crown or the people?”

    “If Mr Spencer loses his case then we have decided the Crown, and not the Australian people, own their land,"

    "We will have set the history of our rights, privileges and freedoms in this country back to the date before the Magna Carta was signed. That's how serious the case is.”

    In evidence, Dr Kemp was professional in his responses. Nevertheless his evidence was consistent with the existence of the formal arrangement between the Commonwealth and NSW, that NSW would implement the 2003 Native Vegetation Act based on Federal Government funding for its implementation; and consistent with the Commonwealth’s plan to meet its Kyoto commitments through the stored carbon in the resulting vegetation.

  7. UPDATE, Monday 8th December

    Spencer team are working on their final oral submission.
    Photograph added to post above is of the team, extended Kennedy family, and supporters Dan and Jeannie Hughes.

    Federal Court schedule from now is:

    Tuesday 9 December - AGS presents Commonwealth's final oral submission
    Wednesday 10 December - Crown Solicitor's Office presents NSW final oral submission
    Thursday 11 December - Peter Spencer presents his final oral submission

  8. UPDATE, Wednesday 10 December

    Both the Commonwealth and the State made their final oral submissions on Monday 8 December.

    Both barristers returned to similar themes to their opening statements, attempting to steer the court away from the substantive matter which is the theft of the carbon stored in the trees on Peter Spencer’s property to assist in in meeting Australia’s Kyoto Protocol commitment.

    Today, Peter and the team have been working on Peter’s final oral submission, which he is to present to the Court tomorrow morning commencing at 10:15AM.

    Tomorrow is the final day of the trial courtroom process.

  9. May God uphold you tomorrow, Peter, with His strength and wisdom. Thoughts and prayers will be with you.

  10. UPDATE, Thursday 11 December

    Spencer v. Commonwealth was reported in "The Land" newspaper today. Reporter Jessie Davies reported generally on the case and in particular concentrated on the final oral submissions by Senior Counsel for the Commonwealth, Lancaster and Senior Counsel for NSW, Kirk.

    The same article also appeared in The Land online, see

    Peter completed his final oral submission today. We understand that there will be a report on this in The Land online tomorrow.

  11. The hearing finished today around 4.30pm. Just some final written submissions to go. These will be finalised for February. From there it will take a good 3 months for a final ruling. With so much stuff for Justice Mortimer to sift through, it will probably be in June next year- just in time for the 800th anniversary of the Magna Carta.

  12. UPDATE, Friday 12 December

    Please see Jessie Davies report on Peter's final oral submission yesterday in The Land online....

    There is also extraordinary irony in the front page article in today's Sydney Morning Herald by Marcus Priest (from Lima) with the heading "Bishop seeks special deal on emissions". The article deals with the negotiations now under way in climate change conference in Lima, Peru.

    The article explains that Australia is pushing to have "land clearing changes", that is another "Australia Clause" included in the Kyoto 2 (2013-2020) agreement.

    Otherwise "Australia is threatening that it will not ratify Kyoto 2 if it does not get its way on targets."

    This is a carbon copy of the tactics adopted by the then Howard Government in the lead up to the 1997 Kyoto Protocol agreement. Australia's "success" in getting the "Australia Clause" in the Kyoto Protocol led directly to the Howard Government "engineering" the much more restrictive 2003 NSW Native Vegetation Legislation and similar legislation in Queensland.

    It is this legislation and the resulting theft of the stored carbon in the resulting trees by the Commonwealth (enabling Australia to meet its Kyoto commitments) that is at the root of Peter Spencer's case against the Commonwealth and NSW.

  13. UPDATE, Sunday 14 December

    Now that the court hearings are over, I will not be making regular UPDATE “news” posts as over the last few weeks. I will however make posts or provide information to Dale whenever there is something significant to report.

    I want to express my thanks to everyone who has followed and commented, and especially to those who donated to the funds set up to fund the court case. You have all been part of an incredible piece of history, Peter Spencer has actually taken the Commonwealth and NSW State Governments to court, put them on trial and in the witness box. Almost unbelievable, and it is on-going – Peter and his team have to prepare and submit his final written submission by the 2nd February, 2015.

    This is an on-going saga of epic proportions – you can bet that John Howard and Bob Carr did NOT see Peter Spencer coming while they were busy “cooking up” the 2003 NSW Native Vegetation Act. They simply would not have dreamt that this man (some kind of collateral damage to them), would take on their respective governments and their successors and persist and persist and persist. It would also not have been possible without the incredible support of a small group of dedicated supporters, especially the whole Kennedy family, Alastair McRobert, and Peter’s own family who have also paid a huge price. I apologise to anyone else I should have mentioned.

    Getting the word out “there”, asking for and generating support has also been very important. In this regard I want to thank Dale Stiller and this blog, Jo Nova, SOS News, and Bob Katter and Katter’s Australian Party

    Thankyou also to the NSW Regional Community Survival Group for making their Fighting Fund Account available for fund raising and to Property Rights Australia for similarly making their Fighting Fund Account available for the much needed fund raising that has enabled Peter Spencer to pay for witness expenses and meet other costs.

    1. Thankyou also to the NSW Regional Community Survival Group for making their Fighting Fund Account available for fund raising, and to Property Rights Australia

      for similarly making their Fighting Fund Account available for the much needed fund raising that has enabled Peter Spencer to pay for witness expenses and meet other costs.


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