Peter Spencer's background story Part 3 of 3

In January 2011, Peter Spencer became aware of an interesting extract from the Queensland Government Hansard which seems to show proof of collusion between the Commonwealth and Queensland Governments to use uncleared land for the Kyoto Protocol requirement.

2011 was a very promising year for Mr Spencer. He was in court several times and turned up many documents which seemed to prove that an agreement existed between the Commonwealth and the State. Access to Cabinet documents was approved by Judge Emmett with access to be granted by State and Federal governments progressively to 2nd September, 2011.

The latter part of 2011 and into 2012 was spent haggling over documents which were required to be disclosed. Many of the 3500 Commonwealth documents were redacted or refused on the grounds that they had “Cabinet privilege”.

On 26th November, 2012 three High Court judges struck down Mr. Spencer’s access to Cabinet documents which were needed to show that state and federal governments colluded to introduce land clearing legislation to lock up carbon on Australian farms so it could meet carbon targets under the Kyoto protocol without compensation.

For four years, the approach taken by the Australian Government Solicitor (for the Commonwealth) had been to deny the existence of any documents showing the existence of informal agreements between the Commonwealth and the Sates (relating to sequestration of carbon and land use change laws and measures) before and after the Kyoto meeting of the UNFCCC in 1997.

In May 2013, still in discovery hearings with Justice Cowdroy ruling that if relevant documents can be found they must be handed over. On 30th May 2013 Mr. Spencer had a productive day in court before Justice Cowdroy.

Barrister Peter King started by giving a detailed chronological account of signed international treaties, intergovernmental agreements, commonwealth/state legislation, commonwealth/state agreements and commonwealth/state committees starting with the United Nations Framework Convention on Climate Change in 1992 and followed on citing in detail many High Court authorities with regards to the merits of the case.

Justice Cowdroy ordered that various State and Commonwealth documents be produced within eight weeks with the court able to reconvene with three days’ notice in the event that this order not be honoured.

24th November, 2014 was the start of the major hearing in the Federal Court to determine if there was a clear direction to the States by the Commonwealth.

In spite of the considerable evidence showing dialogue between the Commonwealth and the States about Carbon emissions, the Judge managed to find that an informal arrangement between the states and the Commonwealth was not proven.
Justice Mortimer handed down judgement in July 2015, rejecting Peter Spencer’s claims against the NSW and the Commonwealth Governments

To read more, this web page documents this major court case - Peter Spencer verses The Commonwealth.

Mr Spencer appealed, with a 3 day hearing starting on February 27 2017 before a Full Court of three judges of the Federal Court. Eventually decision was published on 15 February 2018 to the negative.

But Peter Spencer was not giving up, on March 20 2018 it was announced on the Support Peter Spencer & Australian Farmers Facebook page that he is taking his case all the way back to the highest court in the land - The High Court. Read more [here]

The action through the various courts beginning in 2005, looks like it has come to an end on June 21, 2018 when Peter Spencer was informed that  the application for special leave to appeal to the High Court of Australia was refused with costs. 

Further reading:
'The Death of Property Rights' by Alan Moran

Support Peter Spencer & Australian Farmers Facebook page

No just terms on 'acquisition' with quotes from Murdoch University law lecturer Lorraine Finlay. 

'Courts refuse to protect Australian private property rights' by Alan Moran
'Carbon credit hunger strike farmer Peter Spencer returns to court in fight against Commonwealth' by Michael Condon

***

Peter Spencer's background story Part 1 of 3

Peter Spencer's background story Part 2 of 3

Peter Spencer's background story Part 2 of 3

“In recent decades, thousands of farms have become economically marginal and have gone out of business. What is not widely known is that this “marginality” has often been the result not of market forces but of government regulation. In particular, governments in pursuit of urban green votes have imposed a vast range of devastating new costs on farmers”
http://www.onlineopinion.com.au/view.asp?article=4089&page=0

Peter Spencer wrote this in 2006 after he commenced legal action in 2005 for just compensation, unable to re-clear his farm to bring it back into productivity.

On 22 November, 2009 after reportedly 200 court events and the threat of bank foreclosure on his property, Peter climbed up a wind-monitoring tower on his property (later dubbed “The Tower of Hope) and commenced a hunger strike.

Chris Berg’s article, ‘Lost property: home in deed but not in fact’ published 10th Jan 2010:
“NSW farmer Peter Spencer is coming up to the 50th day of his hunger strike. Spencer is arguing that he should be adequately compensated for native vegetation regulations that prevent his chopping down trees on his land.

Tower of Hope, photo sourced ABC

The Government hasn't literally taken Spencer's property away. He hasn't been kicked off: he's still allowed to wander his land at his leisure. He still holds the title. But his right to use the land has definitely been taken. And if Spencer is not compensated for this regulatory taking, how is it much different from legalised theft?

Peter Spencer's hunger strike in defence of his human right to property is drastic and dangerous. We can only hope it won't be tragic. But his desperation must make us rethink our attitude towards this essential, but increasingly neglected, human right.”

Two days later Peter Spencer ended the hunger strike. His drastic action achieved 3 results. On Feb 2nd 2010 the Property Rights Rally was held on in Canberra, attended by thousands of farmers, with Alan Jones as MC. Following the February Rally came the Senate Inquiry into Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures. The inquiry received almost 400 submissions. The Report was completed in April 2010, and received support from both Labor and Coalition Senators, although to date it has not been acted upon. Importantly avenues to pursue the legal case were opened.

Alan Jones with Peter Spencer at the Property Rights rally, Canberra Feb 13, 2010

On Wednesday 1 September 2010, the Full Bench of the High Court held that the case Spencer v Commonwealth of Australia should not have been summarily dismissed in the Federal Court in March 2009 on the grounds that Mr Spencer had "no reasonable prospect" of successfully prosecuting the proceedings (under section 31A of the Federal Court of Australia Act).

This allowed Peter’s legal battle to continue.

Further reading

https://evacuationgrounds.blogspot.com/p/peter-spencer.html

'Peter Spencer' by Justin Jefferson 

"Tower of Hope" or vale of tears by Brian Bahnisch

'Pole sitter farmer Peter Spencer in tears over massive support for his cause' 

'Peter Spencer wins right to appeal to High Court'

***

Peter Spencer's background story Part 1 of 3

Peter Spencer's background story Part 3 of 3

Peter Spencer's background story Part 1 of 3

Peter Spencer with his oldest daughter, Sarah in 1980,
after he purchased his farm at Shannon's Flat near Cooma, NSW

In 1980, Peter Spencer bought 14,000 acres in southern New South Wales (near Shannon’s flats and on the ACT border). It had previously been significantly cleared during the 1930’s and 40’s, however, regrowth had occurred so that only about 2000 acres was uncleared at the time of purchase.

Throughout the 1980's Peter was involved in tourism in the Papua New Guinea highlands. He became close to Jiga tribesman Paias Wingti, who when he regained office as Prime Minister of PNG bought Peter to Port Moresby in the mid 1990's. Peter drafted a National Law and Order policy which dealt with corruption, which later may have been the reason an attempt was made on his life and encouraged a permanent return to Australia to begin work as a farmer on Shannon's Flat.

Peter returned to find the laws had changed and he could no longer manage the regrowth to return the land to productivity. In 1997, the Federal Government under John Howard decided to meet its Kyoto Protocol commitments with shifty accounting: they offset greenhouse-gas emissions with uncleared vegetation on private property. To avoid any obligation for compensation (under the Australian constitution), legislation to prevent land clearing was used at State level. NSW Premier Bob Carr introduced the Native Vegetation Act.

Peter attempted to use his land gainfully with a trout fishing enterprise – this ran into water problems. He set up a fine wool breeding program (in association with CSIRO) – the Canberra fires of 2003 destroyed surrounding national parks, driving dogs and kangaroos onto his property, killing many of his sheep.

In 2005, Peter commenced legal action for just compensation for the loss of his property rights.

Read - 'The war on farmers' by Peter Spencer, written in 2006

Further references for the above background information:

http://evacuationgrounds.blogspot.com/p/peter-spencer.html

'Farmers are pushed beyond limit' by Micheal Duffy

'White tribesman at home in a wild world', The Australian 

'Hunger strike up a wind mast is an act of tragedies', by Micheal Duffy

***

Peter Spencer's background story Part 2 of 3

Peter Spencer's background story Part 3 of 3

Peter Spencer - Not giving up - Back to the High Court

Peter Spencer is not giving up, he is taking his case all the way back to the highest court in the land - The High Court.

[first published March 21 in a Facebook post]

Peter writes: "'I am writing this brief to bring all supporters up to date with developments surrounding the ongoing court proceedings in the struggle for property rights in Australia.

This submission will is supported by a number of documents - being the High Court of Australia (HCA) - Application for Leave to Appeal and the HCA letter of acknowledgement and instructions.

I do point out the number of applications made to the HCA for Leave to Appeal are successful at the ratio of only 6% to 8% of the applications. 92 to 94% are rejected and that means for them - there is no other appeal path.

However, previously an Application to Appeal in this matter ACD 24 2007 was granted that right in appeal from the Federal Court of Australia (FCA) and the judgement of Emmet J and the FCA full bench.
This application was successfully heard, and Judgement handed down on September 1 2010.
It was significant in that all 7 High Court Judges agreed with our application.

In this matter, as submitted, we are saying that the FCA did not adhere to the HCA of Australia’s Orders handed down in the September 2010 Judgement. Therefore, there may be a higher potential for the HCA to hear this matter.

Further, I do point out in making that statement, that is only my opinion - I have no experience in such matters.

It must be appreciated; the Respondents have the right to defend the Judgement and oppose our submissions. 

Thank you all for hanging in there for the long duration – such a saga, and thank you for your ongoing support."
Peter Spencer

***
The immediate requirement is that Peter Spencer needs $10,000 of donations by about 9 April to keep this Appeal on track.

Payment Methods for the Farmers “Property Rights” Fighting Fund. Please remember any payment is appreciated and needed - Property Rights is a fundamental institution of our liberty.

Method 1:
Crowd Funding Link.
www.gofundme.com/property-rights-high-court-appeal?utm
Please provide an email to Leslie Hillam with details of any payment - see below.

Method 2:
Payment using “Pay Pal” facilities.
Supporters intending donations find it on Pay Pal web site.
This is the procedure –
The supporter goes to the PayPal site on the web and accesses the payment indicator advising that they want to pay money.
The page will request the code needed to identify who the payment is for. Then type in this ID –
ozpond@live.com
and that is the access code to the instructions and payment will process thru to the farmers “Property Rights” fighting fund.
Please provide an email to Leslie Hillam with details of any payment - see below.

Method 3:
For direct payments to the “Tower of Hope” Bank Account.
The “Tower of Hope” Bank Account details.
National Australia Bank.
BSP No. 082 535 Account No. 48 464 3925 The account is in the name of the:
Peter Spencer - “Tower of Hope” National Australia Bank.
Please provide an email to Leslie Hillam with details of any payment - see below.

Method 4:
For direct payments to the Fighting Funds Bank Account in Dubbo
The fighting fund Bank account details are as below:
BSB No: 032646 Account No: 494974 The account is in the name of the:
“NSW Regional Survival Group Fighting Fund” at Westpac in Dubbo

Farmers Fighting Fund Administrator’s Contact details:
Lesley Hillam: e-mail address: lesley.hillam@bigpond.com
For any assistance with payments regarding all above methods and notice of all payments.'

***
Please go to the Support Peter Spencer & Australian Farmers Facebook page for a lot more information posted there last night in a 4 part series

Part 1 - advice provided by Barrister Peter King to Peter Spencer dated 28 February 2018
https://www.facebook.com/permalink.php?story_fbid=10157258718078047&id=234917523046

Part 2 - Application for Special Leave to Appeal
https://www.facebook.com/permalink.php?story_fbid=10157258924763047&id=234917523046

Part 3 - response letter from the High Court confirming Spencer's application for special leave and setting out the timeline for further submissions
https://www.facebook.com/permalink.php?story_fbid=10157258956508047&id=234917523046

Part 4 - Peter Spencer's email & links to articles published by Alan Moran and David Evans

Peter also writes:
"I intend to brief as many farmers as possible, on the judgment, the decision to attend the High Court for “Leave to Appeal” and the reasons.
Anyone who can organize meetings - 50 or so farmers and as many meetings in one general area as close together so my visit is productive.
https://www.facebook.com/permalink.php?story_fbid=10157259021058047&id=234917523046

Tragedies under Kyoto 1 will be echoed under proposed Kyoto 2.

Republished from Australian Climate Sceptics blog (LINK)

John Spooner: Taxing Air

Marcus Priest writing from the Lima COP20 Conference in the The Age:

But the Abbott Government is also in the middle of a new controversy at the Lima conference over the way Australia's emissions target will be calculated under the second commitment period of the Kyoto Protocol, the current global climate agreement, due to expire in 2020 and replaced by any new deal signed in Paris next year. 

With apologies to John Spooner.

Australia is seeking to use favourable rules around land clearing - originally agreed to under Kyoto in 1997 to establish an earlier target - in calculating its promised cut for 2020 under the protocol's second stage. 

If Australia is not allowed to include land use emissions to calculate its target it is estimated that it will increase the national 2020 goal by between 40 to 80 million tonnes of carbon emissions or up to 2.5 per cent. 

Australia is threatening that it will not ratify Kyoto again if it does not get its way on targets, and has won support from major developed nations and also Brazil. (bold added)

In 1998, under the Howard Government, the Science, Technology, Environment and Resources Group issued Current Issues Brief 10 (link) contained inter alia:

• Credit for reductions in greenhouse gas emissions from land clearing changes or the creation of greenhouse sinks was allowed for in the Kyoto Protocol.

Allowance for emission reductions from land use changes was permitted in the base year in the Kyoto Protocol. Thus, reductions in greenhouse gas emissions from declining rates of land clearing or forestry can be used to meet target commitments. Similarly, removals of carbon dioxide from the atmosphere by absorption into biological systems can be used. These removals of carbon dioxide, for example the planting of forests, are referred to as 'sinks'. 

Ian Hampton writes of Australia's actions in Lima:

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.

Why Tony Abbott would pander to the loony lefties who read the SMH and watch "our" ABC is a mystery. Turning his back on the people who voted for him and bowing to  people who will never vote for him seems a suicide move.

SO, how did the Kyoto 1 Land Use Protocol work out for Australian Land holders. Let's look at two examples:

• Farmer tried to work with the Land Use Protocol;
• Farmer lost farm due to the Land Use Protocol. 

Farmer tried to work with the Land Use Protocol

Jennifer Marohasy wrote of the Stuarts of Mt Morris Station in June 2014:

Cate speaking to ABC radio May 20, 2014, about how carbon farming is a “good business strategy” at http://www.abc.net.au/news/2014-05-20/mount-morris-cate-stuart/5465060 . But the banks, for good reason, thought otherwise.

Cate Stuart among the mulga trees the Stuarts have used to create a
carbon-storage scheme with the help of Australian Carbon Traders.
Picture: Lyndon Mechielsen Source: News Corp Australia

Mark and Cate Stuart tried to work within the system and create a carbon sink. The sink was supposed to create income of $400,000 every 3 years. (link)

Cate and Mark Stuart will be evicted from their historic Charleville cattle station, Mount Morris, on Thursday after rural lender Rabobank last year called in the receivers Ferrier Hodgson to ­recoup an outstanding debt of $2.6 million. 

The Stuarts are heartbroken. But the tough outback family, which has run the 20,000ha far-west Queensland spread for the past six years, isn’t going without a fight. A very modern fight. 

They say the bank has failed to recognise their wild and sprawling home is more than just a cattle farm: it is a carbon bank. 

For the past four years, the ­Stuarts have worked with thespecialist carbon farming company Australian Carbon Traders to capture and store carbon on 5000ha of their mulga tree ­reserves. 

They planned to earn up to $400,000 every three years in valuable carbon credit payments.

Mt Morris is now for sale - See LINK.  The Stuarts have lost everything.

Cate has been featured before on the Australian Climate Sceptics blog, during the Convoy of No Confidence: LINK

Cate is now known as "Convoy Cate from Charleville." Listen to Cate on ABC's Counterpoint HERE.

Farmer lost farm due to the Land Use Protocol 

Readers of these pages should be aware of Peter Spencer: Our friend, Joanne Nova, has written a magnificent summary HERE

Peter Spencer’s story is one I didn’t think could happen in Australia. He is the farmer in New South Wales who bought a farm and then lost 80% of it when rules changed to stop people clearing native vegetation. Unable to use most of his property, he was slowly bankrupted. Though he broke no law, he lost his life’s work and his beloved farm in late 2010. There was no way out. He couldn’t sell the property — who would buy a piece of land that could not be used? Farmers all around Australia lost billions of dollars in assets as the value of their land and produce declined. 

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. (link)

Read the trial notes in  "Peter Spencer: Court diary"

These are just two stories (from both sides of the boundary fence) of the myriad tragedies caused by Land Use Protocol under the original Kyoto Protocol.

Now, landholders (and all Australians)  should gear up for more tragedies IF the Abbott Government gets acceptance of their new Land Use Protocol.

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?

. 

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

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

 .

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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