Showing posts with label court. Show all posts
Showing posts with label court. Show all posts

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

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
 
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Sunday, 9 November 2014

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 David Crombie.
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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Monday, 27 October 2014

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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Monday, 17 March 2014

Peter Spencer: NFF withdraws funds



by Ian Hampton

NSW farmer Peter Spencer outside the High Court, Canberra
Peter Spencer, photo sourced ABC
On Thursday 6 March, on the NSW ABC Country Hour, Michael Condon interviewed Hugh Nivison, Chairman of the Trust administering the Australian Farmers Fighting Fund (AFFF). 
 

The interview was in response to Spencer supporters informing the Country Hour that the fighting fund assistance used to back the legal fight against the Commonwealth had been stopped, and that this untimely withdrawal has left Spencer 'high and dry' at a critical time as the case is getting closer to going to trial.

 

However, when challenged by Michael Condon, Mr Nivison said that was not accurate.  Mr Nivison “blew a bit of smoke”, saying the fund had only committed to funding the process of legal discovery and is now looking at the documents to see if any more assistance is warranted, according to the merits of the evidence.  He also said "It is a complicated issue and we want to have a look at the evidence before we make a decision on where we go to from here," he said.

There is a report on the issue, and an audio of the interview on http://www.abc.net.au/news/2014-03-06/nrn-spencer-case-funding-in-limbo-6-3-14/5303300

Nivison’s statement lacks credibility.  Peter Spencer’s solicitor, Mr Peter McKell was advised by letter in January that the funding was to cease and the letter is clear and makes no such qualification.  It includes the following words “the Trust has now carefully reviewed the above matter post discovery.  As a result of this review the Trustees have formed a view to no longer support the case, and the Trust therefore will provide no further funding for this matter (Spencer v The Commonwealth of Australia)”.

The AFFF website home page includes the following two statements:  

“Established in 1985 - by farmers for farmers - the Australian Farmers' Fighting Fund (AFFF) provides financial, legal and professional assistance to farmers facing major issues that have the potential to set legal precedents.”
 

“The AFFF supports farmers in their fight against unfair and unwarranted barriers to the development of sustainable farming practises and vibrant regional communities.” 

Surely the Spencer case meets both of these tests.  One has to wonder why the AFFF Trustees firstly, and without qualification withdrew the AFFF funding, and when challenged resorted to making politician like statements about their support – when the Fund’s continued support is most needed.
 

The Spencer camp are not inclined to let the issue rest; it is hoped that a supporter will be interviewed on NSW Country Hour in the near future to clearly put forward the facts of the issue.
 
Previous related posts
 
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Friday, 24 May 2013

Peter Spencer Update May 2013

by Ian Hampton
 
Since the High Court decision that ordered the matter to return to the Federal Court for the discovery of internal government documents, there has been approximately 4000 documents produced predominately from the Commonwealth and some from the State (NSW).

After the reading of these documents it has been found that there are documents that relate to some of the documents that have not been discovered, and some categories that have not been produced by either the Commonwealth and the State.

The Australian Government Solicitors (AGS) and the Crown (NSW Government) have refused to discover any more related docs and also the categories that have not been discovered.
 

Last Friday 17th May there was a directions hearing where the document categories in dispute were filed and a submission made outlining the reasons why these categories are relevant to Peter's case. Federal Court judge, Justice Cowdroy J will hear the case for further discovery at a Interlocutory Hearing next Thursday 30th May in Federal Court, Sydney 9.30 am.
 
Effectively Peter will be arguing the relevance to his case of the further discovery and the AGS and Crown will be arguing that the documents are not relevant and they have exhausted there resources.
 
At the directions hearing last week Justice Cowdroy J made it quite clear that after reviewing the history of the case that if the documents sought by Peter are relevant to his case and can be found, bthen they must hand them over.

The outcome of this hearing next week will be very interesting.

UPDATE # 1
Spencer v Commonwealth interlocutory hearing 30/5/2013
Please read details in the comment section below

Previous related discussions


 


Monday, 6 May 2013

PRA: Qld reforms to Vegetation management act


Hats off to Premier Campbell Newman for having the courage to make much needed reforms to the Vegetation Management Act. With many of the worst attacks on our civil rights such as reversal of the onus of proof, denial of the right to silence and mistake of fact, to be reversed. These rights have long been considered basic principles of the Westminster system and their removal has received criticism from jurists and legal academics.



The Queensland government has acknowledged that it will not stay in power without the support of the South East corner and that a well organised and vocal environmental front will seek to portray any reforms as environmental vandalism. We are mindful of that.
Photo sourced Courier Mail
 
 
 
Property Rights Australia (PRA) appreciates and applauds the reforms made on behalf of rural Queenslanders by the Newman government.

The Vegetation Management Act 1999 had almost 400 amendments made during the terms of the Beattie and Bligh ALP governments with about half being retrospective. Clearly it was hastily drafted and unworkable.

The prosecution of the Act was shambolic with the Department of Environment and Resource Management (DERM) and its predecessors completely forgetting that as a government agency it was required to be a model litigant which requires it to adhere to the highest standards of probity and fairness in its conduct of litigation. It is also required to spend taxpayer's money with due cause and due process. Many who believed they were innocent were charged but were unable to field the resources to challenge against the might of the State. Charged but exonerated were landowners such as Ashley McKay who had a legal permit to clear.

Using taxpayer funds to chance their arm and to the ire of some Magistrates the Department brought cases which were out of time, where correct certified vegetation maps as specified by the legislation were not produced and one case where a government officer was charged with contempt of court. Other examples can be found of cases where fabrication of evidence and perjury were a feature.

Fines have been exorbitant and appear to have been administered in an ad hoc manner, with the penalties being many times higher than mining companies are commonly required to pay under other environmental protection regulations. Given the stress and financial hardship caused to landowners by these regulations, the amendments to this Act are well overdue and much appreciated.
Property Rights Australia has long advocated the necessity for reform and we are prepared to defend the Amendments against criticism in any forum

 

Sunday, 16 December 2012

SPENCER GAINS GROUND IN FEDERAL COURT

Article provided by Ian Hampton

SPENCER GAINS GROUND IN FEDERAL COURT - Commonwealth and NSW must attend Discovery mediation meeting
At the directions hearing of Spencer v. Commonwealth on Friday 14 December, Nick Gouliaditis for the Commonwealth Government asked the Court for an order prohibiting Peter Spencer from discovery of any further Commonwealth Government documents of any category on the grounds that the Commonwealth has fulfilled the discovery of all categories as the Court has ordered.
Spencer’s counsel, Peter King responded with a blistering attack on the orders sought by the Commonwealth and State of NSW.  As a result, Justice Emmett J ruled for a mediation meeting between the parties (Spencer, Commonwealth and NSW Government), to be held early in the New Year to be followed by a directions hearing on Friday 8th February 2013.
In his presentation, King made reference to the mosaic picture arising from the quantity and contents of the documents discovered so far, covering a period of well over 2 decades. 
The mediation meeting will enable Spencer to put on the table all categories of documents that have been sought and not produced, also documents that relate to produced documents.
This is a breakthrough for Spencer who has been frustrated by Commonwealth tactics since his historic win in the High Court in September 2010 where the finding was that Spencer should have access to the documents he needs to present his case.  Since then the Commonwealth have produced 3,500 documents; however in a great many of these documents the relevant material has been redacted, and Spencer has been denied access to many documents on the grounds of “cabinet privilege”.  With regard to the State of NSW they have only delivered 350 documents.  These documents reveal absolutely nothing and appear to have been selected on their merits as a PR exercise.  However, mediation will provide a forum for Spencer to pursue the categories not produced by the State.
There is a sense that with a consistent approach and solid research and advocacy, Spencer is starting to make headway in the Federal Court against the primary respondent, the Commonwealth.  The charter of the Commonwealth Government Solicitor (CGS) is that the CGS is a “model litigant’; in fact the CGS has been anything but – alternately claiming that there is no case to answer, that Spencer is on a “fishing expedition”, using bluster and bullying tactics as its primary courtroom tactic, delaying and delaying the obtaining and supply of discovery documents.  There are no clear tactics and it appears that His Honour, Judge Emmett J is now seeing through these tactics for what they are.
These are the same tactics used for almost 6 years by the Commonwealth Government which has incorrectly applied Section 31A of the Federal Court Rules, which the High Court in Its ruling said did not apply.  These are the tactics of a Government not interested in the truth but desperate to keep their actions, and those of their predecessors deeply hidden from the people. 
King also made reference to the recent failure of the Doha conference regarding the Kyoto Protocol in that it apparently is a failed policy and it is regrettable that Spencer’s farm should be taken among other wrongs for the purpose of a failed policy. 
 
Previous related discussions

Tuesday, 11 December 2012

Peter Spencer Update December 2012

Ian Hampton has provided the following media release


PETER SPENCER FIGHTS ON IN FEDERAL COURT, SYDNEY THIS FRIDAY 

Peter Spencer will be back in the Federal Court, Queens Square, Sydney at 10 AM this coming Friday for a directions hearing of Spencer v. Commonwealth of Australia. 

Spencer’s case will not be assisted by the decision on 26 November by the Federal Court of Appeal upholding parliamentary privilege over four categories of Cabinet documents sought by Spencer, claiming that the subject of the documents is current and contentious.  This decision flies in the face of the unanimous decision of the Full Bench of the High Court in September 2010 that Spencer should have access to the documents he needs to present his case.
 

RELATED ISSUE

Last week in Doha, Australia signed up to the continuation of the Kyoto Protocol agreement.  It is ironic that Australia’s ability to continue meeting its Kyoto commitment target has been solely on the back of the enforced (and unpaid for) storage of carbon in native vegetation on private farms that is at the core of Spencer’s case.
 
Previous related discussion
 
 
Later published related discussion
 
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Thursday, 29 November 2012

Peter Spencer Update November 2012

The following has been submitted by Ian Hampton. Ian has tried to keep Peter Spencer followers informed on the other site only to have his discussions & comments repeatily deleted by the person who holds the creator status.



“The latest hearing in the on-going Spencer b. Commonwealth of Australia case was held on Monday 12 November in front of 3 judges including Chief Justice Keane constituting the Federal Court of Appeal.  Peter Spencer was represented by barrister Peter King; the Commonwealth is represented by the Commonwealth Government Solicitor (CGS).
 

Peter Spencer has appealed a decision by Justice Emmett denying Spencer access to Cabinet documents as these documents are subject to “public interest immunity”.

The day was fundamentally about the Commonwealth of Australia opposing Spencer’s appeal on the basis that the evidence produced for the Appeal is not applicable.

This turned out to be a gruelling day.

Peter King started his oral submission and spoke for a long time…  re-stating Spencer’s position that (in the light of the High Court decision), Spencer should have access to the cabinet documents he has requested.

Then Howard (for the CGS) went through Spencer’s statement of claim disputing King’s submission on points of law.

King then disputed Howard’s arguments, including putting forward the morality of the case.  Peter King was very good in his oral submissions arguing his interpretation of two High Court precedence cases with regard to parliamentary privilege, he certainly has given the judges something to think about.

The 3 judges then reserved their decision – to be handed down at a later date.  These 3 judges have previously (supported Justice Emmett and) ruled in favour of parliamentary privilege; whereas the unanimous decision of the High Court in September 2010 in Spencer’s case is that parliamentary privilege is not absolute and is open to discretion if it will result in a loss of justice to Mr Spencer.    In effect the Federal Court judges are between a rock and a hard place.  If they support Emmett and the Commonwealth – they are finding against the High Court decision. 

To say the least, the decision of the 3 Federal Court judges will be interesting.

The tactics of the Commonwealth are obvious – with infinite resources the CGS can keep on putting up delaying tactic after delaying tactic to continue to frustrate and hold up progress of Spencer’s case in every way possible.  And unfortunately, the law responds and deals with this matter very very slowly….  It can be seen that the Law (as a whole) only gets stirred into action (and becomes responsive) when there is real public pressure.”
 
Later published related discussions
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