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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The Federal Government can’t take your assets without paying - “bigger than Mabo”

Peter Spencer - who spent 52 days up a tree protesting the usurping of his "kyoto" trees on his own property....The Native Vegetation Acts were brought in by the states to stop farmers clearing native plants — but no compensation was ever paid to farmers.....however......The Commonwealth is not allowed to confiscate assets without due compensation...



Peter Spencer is doing this on behalf of all property owners in Australia and is determined not to give in.



Hat/Tip: Joanne Nova.

http://theclimatescepticsparty.blogspot.com.au/2014/11/the-federal-government-cant-take-your.html

Wake Up Australia

by Viv Forbes

 

Today is Remembrance Day, an appropriate time to reflect on our ability to defend ourselves.

History holds lessons.

 

Back in Dec 1941, Japan suddenly attacked the huge US Naval base at Pearl Harbour. Three days later, two “invincible” British warships, “Repulse” and “Prince of Wales” were sunk by Japanese planes off Malaya. Soon Japanese armies were rampaging through Asia towards Australia. By Feb 1942, the British fortress of Singapore surrendered and Japanese bombs were falling on Darwin. By Sept 1942 the Japanese army had slashed their way down the Kokoda Track and could see the lights of Port Moresby. They were looking across Torres Strait to Australia. At that time, most of our trained soldiers were fighting Rommel in North Africa or in Japanese prison camps.

Suddenly Australia was on its own and needed to defend itself with what we had here. Armies need soldiers, weapons, bullets, vehicles, fuel, food (and cigarettes).

Rationing was introduced for petrol, food and cigarettes. An immediate critical shortage was copper for cartridge cases - we had mines producing lead, zinc, silver, gold and iron, but there was a critical shortage of copper.

The mill, Mt Isa, R Emerson Curtis, Australian War Memorial

Fortuitously, just before the Japanese attack on Pearl Harbour, an exploration drill hole at Mount Isa had struck rich copper ore.

Mount Isa was called on to avert a calamitous shortage of copper in Australia. With government encouragement, Mount Isa Mines made the brave decision to suspend the profitable silver/lead/zinc operations and convert all mining and treatment facilities to extracting copper.

The lead concentrator could be converted to treat copper ore, but the biggest problem was how to smelt the copper concentrates. Luckily the company had skilled engineers and metallurgists in the lead smelter. In a miracle of improvisation, scrap steel and spare parts were purchased and scavenged from old mines and smelters from Cloncurry, Mt Elliott, Mt Cuthbert and Kuridala and cobbled into a workable copper smelter. In 1943 the first Mount Isa blister copper was produced. Production continued after the war when Mount Isa returned to extracting the then more profitable silver/lead/zinc. Later new plant was built enabling both lead and copper to be produced from this fabulous mine.

This story of the importance of self-reliance has lessons for today.

The war on carbon energy, the carbon tax, the renewable energy targets, escalating electricity costs and the voices in Parliament calling for Emissions Trading Schemes have all unnerved our big users of carbon fuels and electricity. Smelting and refining have become threatened industries in Australia, and closure of the Mount Isa copper smelter and the Townsville copper refinery has been foreshadowed. Already six major metal smelting/refining operations have closed in Australia this century and more are likely. The closures have affected copper, lead, zinc, steel and aluminium – the sinews of modern industry. And the car industry, with all its skills and tools, is closing

Mt Isa mines sourced Herald Sun

Local production and refining of oil is also declining, while anti “fossil fuel” vandals are trying to 
prevent domestic exploration and production. More and more land and offshore waters are closed to exploration and mining, and heavy industry is scorned. It was estimated recently that by next year, half of Australia’s oil refining capacity will have closed. In the event of a disruption to tanker routes, Australia has just 12 days of diesel supplies before city fuel and food supplies start to dry up.




We are losing the resources, skills and machinery needed for our own security, while we fritter precious resources on green energy, direct action, carbon capture and storage and other pointless anti-carbon chimeras.

Our foolish green energy policies and the suicidal war on carbon fuels are killing real industry leaving us unskilled and defenceless – like a fat toothless walrus basking on a sunny beach.

Wake up Australia.
 Viv Forbes,
Rosewood    Qld   Australia
forbes@carbon-sense.com


For those who would like to read more:

Australian Fuel supplies very vulnerable to disruption. Food and fuel Chaos within days:
https://au.news.yahoo.com/a/25427007/al-qaeda-threatens-australias-overseas-oil-supplies-expert-warns-of-possible-society-collapse/

“Mines in the Spinifex – the Story of Mount Isa Mines” by Geoffrey Blainey, Angus and Robertson, 1960

“The Challenge of Standing on the Shoulders of Giants” by Collin Myers, Congress of the International Mining History Association, Charters Towers, 2014.

Disclosure: Viv Forbes is a geologist, financial analyst and farmer. He has spent a lifetime working in various roles and places including Rum Jungle, El Sherana, Mt Isa, Goonyella, Blackwater, Nebo, Brisbane and Sydney. He is a non-executive Director of a small Australian coal exploration company and, with his wife Judy, breeds cattle and sheep at Rosevale in Queensland. He was the founder of the Carbon Sense Coalition.
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Peter Spencer: Farm associations where is your support now?

Farm associations were very supportive of the Peter Spencer case back in 2010 but now at the very crucial time of the final court case starting November 24 2014 any support from these farm organisations is conspicuous by its absence.

Letter to the editor, The Land, Nov 6 2014

Wally Mitchell in his letter mentions the NSW ABC Country Hour interview with Hugh Nivison, Chairman of the Trust administering the Australian Farmers Fighting Fund (AFFF).

Recently in my role as chair of Property Rights Australia I was informed by a member who spoke with the AFFF secretary and that upon inquiring why AFFF was not backing the Peter Spencer case with funding was told that,

"they were prepared to support him but he to date had not accepted their offer”

The response from the Peter Spencer team upon being informed of how AFFF were deflecting any heat from their lack of action was,

"There has been no offer from AFFF to Spencer to resume funding of the case.  Spencer is providing some documents to AFFF relating to the case requested, by them. "

This is worst than just being unhelpful.

 

NFF president in 2010, David Crombie
photo sourced The Land

The 9th August 2010 media release by NFF president David Crombie, Farmers’ property rights under siege . Earlier in March 2010 David Crombie made strong statements in the article, Families and natural justice suffer as property rights usurped.  

“It’s a perfect scam where state and federal governments use their respective powers in concert to effect property takeover but avoid paying ‘just terms’ compensation. Enough is enough."

 

Peter Spencer needs your support, to learn how you can help please read the following article:
PETER SPENCER NEEDS YOUR HELP

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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

 

 

***************    

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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Kill Kyoto Liabilities

by Viv Forbes

  

cartoonist Gary Varel

The Kyoto Protocol was dreamed up by the Climate Jet-set in Kyoto, Japan in 1997.

One of the first decisions of born-again-green PM, Kevin Rudd, was to commit Australia to Kyoto Phase 1 in 2007.  This treaty required signatories to reduce production of carbon dioxide to 5% below 1990 levels by 2012.

As a late joiner, Australia got a lower target, involving no actual cuts.  And they achieved that easy target by robbing Australian landowners - they stole carbon credits from landowners by imposing tree clearing bans. That larcenous trick can’t be pulled twice.

Ironically, the death notice for the Kyoto misadventure was posted by Japan, the birthplace of Kyoto, when they announced at Cancun in 2010 that Japan would not agree to any further targets. Japan was shocked at the billions in liabilities they had accumulated by not meeting Kyoto 1 target cuts.

Undeterred by this warning, another ALP/Green government agreed to Kyoto 2 in 2012 – 5% below 2000 levels by 2020.

This target, agreed to without due diligence, is dreamland stuff for Australia. Once the growing population is taken into account, this target would require Australians in 2020 to maintain industries and create new jobs using 30% less hydro-carbon energy per capita than was used in 2000.

Mining and mineral processing, agriculture, manufacturing, transport, tourism, electricity generation, cement, forestry and fishing are the backbone industries of Australia. Not one of these industries could maintain production while also significantly reducing their production of carbon dioxide, unless Australia embarks on a crash program of building new hydro and/or nuclear power stations. The chance that green regulators or politicians will allow either of these options any time soon is zero.

The use of carbon fuels, more than any other indicator, measures the growth and health of modern economies. The only way to kill carbon is to kill the economy – close industries or send them overseas. The Global Financial Crisis probably did more to reduce the use of hydro-carbon fuels than Kyoto will ever do.

Japan’s exit from Kyoto obligations was soon followed by Canada and Russia. USA never signed, nor did China, India, South Africa or Brazil.

Thus the four biggest economies in our region (USA, China, Japan and India) are not burdened by Kyoto. Nor are our big competitors - Brazil (iron and beef), Indonesia (coal), Chile (copper) and Canada (wheat). We only have the Kiwis and the faraway Europeans sharing the sinking Kyoto ship.

The Kyoto Agreement is a failure. Australia repealed the costly carbon dioxide tax. Next we should get rid of Kyoto liabilities.

sourced from WUWT

Greenpeace Co-founder Patrick Moore: Greenpeace is evil.

Reposted from the Australian Climate Sceptics blog

Just before he embarks on his Down-under tour (See tour schedule HERE) , Patrick Moore has labelled the body he co-founded - Greenpeace - as evil and guilty of losing its humanitarian roots.

From the MailOnLine:

• •  Co-founder Patrick Moore says organisation doesn't care about people
• •  He cites example of a GM-rice which would help millions if widely produced
• •  Dr Moore says fact that Greenpeace oppose crop shows it is 'evil'
• •  Comes after the ecologist quit the group because it became 'too political'
• 
  
• Ecologist Dr Patrick Moore, who quit Greenpeace in 1986, has launched a scathing criticism of the activist group, which he insisted has lost its humanitarian roots. 

His attack on the organisation he helped create comes as former Environment Secretary Owen Paterson campaigns against the 'self-serving' and 'highly-paid' network of environmental pressure groups he calls the 'green blob'.  (LINK)

Dr Moore told BBC Radio 4's Today Programme: 'My problem with Greenpeace is they have lost any humanitarian roots they had. 

'When we started Greenpeace it was to stop nuclear war and the destruction of human civilisation, that of course is the "peace" in Greenpeace. 

'The "green" is the environment and that's good as well, but they lost the concerns for humans... They have turned, basically, into an evil organisation.'

Read More HERE