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

FORMER HOWARD GOVERNMENT MINISTER WILL BE IN THE WITNESS BOX NEXT WEEK

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

PETER SPENCER NEEDS YOUR HELP

 

Peter Spencer: Farm associations where is your support now?

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PETER SPENCER NEEDS YOUR HELP

Update November 14 - A new site dedicated to Peter Spencer was launched today. Please go to Peter Spencer versus The Commonwealth

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

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



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 -

e-mail address lesley.hillam@bigpond.com

fax number 02 6892 4449

 

 

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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. 

 

If you are close enough to Sydney and have the time – Peter would really appreciate your presence.  We have a view that the legal system (like any other arm of Government) works best when it is subject to public scrutiny.

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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