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

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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'

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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

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Peter Spencer's background story Part 2 of 3

Peter Spencer's background story Part 3 of 3

Why Bother?

Hell bent on making changes to the Vegetation Management Act, the Qld ALP Palaszczuk government is showing disregard to the hands-on knowledge of farming families.  They don’t appear to be listening, so why bother writing a submission. Reluctantly, after a number of people made the request, I sat down at my keyboard the eve submissions closed and went to write a one pager to basically say F U. However something a little more positive emerged, with a little more optimism, that perhaps, just maybe sometime in the dim distant future that the  collective light bulb will go off, bringing a new dawn of a better way of working together. The cynic in me doesn’t give it much hope – anyway this is my submission.

photo sourced Department of Environment, Commonwealth of Australia

The very premise of the Vegetation Management Act (VMA) is at fault to the point that it is not amendments that should be under consideration but a journey to replacement legislation that aims to achieve genuine consultation with the people most subject to the current Act’s apparent tyranny.

The Regional Vegetation Management Plans (RVMP’s) was the last time there was genuine consultation and two-way communication between government and rural landowners. This process was designed to initiate a cooperative and consultative approach on how to best to manage the balance of vegetation management and farming. As history has shown, common sense did not prevail and these were discarded in act of duplicity by the then Premier and government and the VMA introduced.

The approach taken in the VMA was also repeated in changes across the board to how government interacted with agricultural producers.  The core of the VMA champions coercion and discards cooperation. It saw the change of agency staff working with farmers in an atmosphere of goodwill and mutual respect to that of policing, prosecution and distrust. Previous important practical and common-sense “in the field conservation measures” were abandoned to remote, austere and antagonistic direction based on a political imperative and bending to the whims of the green movement. 

Such methodology creates distrust, division and resentment. It creates minimal adherence to an alien constraint to the realities that agricultural producers live, work and know. Loss of hope prevails to a level where farming families see no future for the young adults to come back to the farm and continue with agriculture as a career path. The urban politician who make these types of laws and the public servant who administers the law appear oblivious to how they, through these legislative instruments, indifference and ignorance, cripple the farming community and all those other levels of the community reliant on farmers being able to continue effective and profitable farming.

Some of us have been in the debate about vegetation management for over three decades now.  Even though we work, live in and have a long intimate relationship with the land, there is a sense of being treated as only a minor stakeholder whose views are consistently overridden by more powerful interests. It has been a degrading and humiliating experience being used as a political yo-yo during the many changes over the years to the VMA and legislation of its ilk.

One is left more than just a little cynical on why should we continue to play the game of perpetual submission writing, detailing a view on each provision being amended. We, the real custodians of the land, are left with the feeling of being ignored and treated with contempt.

There are those like myself who absorbed the original ethos of the Landcare movement when it first emerged. We, who are interested in practical, hands-on conservation, who know there is a beneficial tree/ grass relationship aiding both environmental and agriculture production criteria, who understand each bio-region is very different and cannot be administered by State-wide blanket legislation, we who do NOT want to knock down every tree but know that vegetation management can be as beneficial to farming as it is to the environment. Simply put, tree clearing itself is not bad, rather it’s a matter of where and how development is conducted.  There are those of us who live assuredly in a role of both the steward for our patch of land and as a provider of food for our society.

We could be prevailed upon to work together to a better legislative future, but until there is genuine demonstrated pathway of goodwill, respect, empathy, understanding and certainty of agreed negotiations be fully honoured, why should we bother? There needs to be a reversal of the current near certainty that we will be completely ignored - Ignored in favour of green groups who have no interest, or knowledge, in the successful integration of farming development and the environment.

This current Bill should be voted down for it ambiguous provisions, the possibility of increasing oppressive outcome, the continued enlarging upon flawed negative counterproductive laws and a total disregard for the opinions of the real stewards of the land.    

The Newman Government’s Water Act amendments: Part 4 - Stream diversions

by George Houen

McArthur River Mine, photo sourced [here] 

Stream Diversions 

Setting the miners free to dewater as much as they like and without any prior impact assessment is  not consistent with the Bill’s treatment of miners’ authority to divert surface water in streams, which currently also requires a water licence. Under the amended section 98 of the Water Act they may only divert a stream if the particular diversion and its impacts were assessed as part of the grant of an environmental authority and a condition of the authority allows it.  

Comment 

It should be permissible that objections against an environmental authority or its conditions (including any Coordinator General’s conditions) may include objections against a proposed stream diversion.

 

First Refusal for Affected Landholders 

Under the Bill’s clause 334Z of the MR Act, the miner may use the associated water for any purpose anywhere. This could result, for example, in groundwater which the bore owner is entitled to and is relying upon, being taken and used by the miner off lease for a non-mining purpose, or sold to someone else for a non-mining purpose.  

Comment 

Where the dewatering produces associated water in excess of a miner’s requirements for the mining purposes, the miner should be required to treat the surplus by reverse osmosis, then give all potentially affected landholders first right of refusal to take the treated water for their own use, at no cost.

 

Agreement 

A template make good agreement (which is readily adapted for either mining or CSG) is available from landholder Services. It was first adopted at the Callide Mine some 6 years ago and has been subjected to extensive review since. Provisions for baseline testing, monitoring and setting of trigger levels in the original agreement have operated satisfactorily. 

 George Houen

Landholder Services Pty Ltd

13 Cottesloe Street

Toowoomba

Qld 4350

Phone 07 4632 1024

 

 

 

Previous published related posts

The Newman Government’s Water Act amendments: Part 1 - Deregulation of the Dewatering of Mines

The Newman Government’s Water Act amendments: Part 2 - Uncoordinated Approval System

 

The Newman Government’s Water Act amendments: Part 3, Make Good

 

The Newman Government’s Water Act amendments: Part 3, Make Good

Photo sourced: Farmer claims mine water monitoring is flawed

By George Houen

Make Good

Mine dewatering is to be subject to the Water Act provisions requiring underground water impact reports, baseline assessments, general agreements and make good agreements. These will do little if anything to protect the rights of other groundwater users.

 

 

Miners will hide behind the one-side and trivial provisions of the Water Act to frustrate any attempts by landowners to achieve make good agreements that are actually workable and enforceable. The limited  bargaining power which the landowner may have during the current objection process will no longer count for anything as far as a make good agreement is concerned.  

The Water Act make good provisions are so one-sided and fundamentally flawed that in practical terms are they unenforceable, for example:

1. settlement of a make good agreement is not required before dewatering begins, so the landholder has no bargaining power – only a recourse to the Court and the Court would be restricted by these badly designed Water Act provisions
2. no requirement for independent expert testing of bores;
3. bore owner not entitled to the data and reports
4. baseline testing of private bores inadequate (especially as sustainable yield and gas intrusion not tested)
5. no regular monitoring of private bores including for specific capacity (short-form yield test) and gas intrusion
6. no expert-determined declining value trigger levels for individual bores derived from monitoring data (just one-size-fits-all water level decline which is not conclusive proof of diminished capacity)
7. no process for independent expert interpretation of impaired capacity and its cause when trigger levels reached
8. no process for resolving appropriate make good action
9. no dispute resolution process for technical matters requiring expert assessment
10. both make good and compensation are assessed according to the ‘authorised purpose or use’ of the bore, ie. its licensed yield limit (if there is one) and description of its utilisation at the time of baseline testing. Either or both of those parameters may be substantially below the bore’s actual capacity.

Comment

Licenced yield (if the bore is subject to licensing) can be amended. Subject to that upper limit it is the owner’s right to use the bore’s full capacity and it is that full capacity which must be underwritten by the make good system.  

The Water Act make good scheme fails to test (baseline test) and track (by monitoring) an individual bore’s actual capacity and thereby accurately identify any adverse change and its cause. Data from those in-house assessments isn’t required to be shared with the bore owner. Those

broad groundwater assessments and reports under the Water Act will gather a vast bank of data which is of little if any use when it comes to achieving a just outcome for the owner of a damaged bore.

 

More detail of the dysfunctional nature of the make good scheme may be found in ‘Make Good Flaws’, a supplementary document from Basin Sustainability Alliance at the 29thOctober 2014 public hearing of the Agriculture, Resources and Environmental Committee of Parliament.   

As is painfully obvious from experience in make good negotiations with CSG companies, such weak and inadequate terms in the Act are used by resource companies as a shield to deflect and frustrate any attempt by landholders to negotiate realistic and enforceable terms of a make good agreement. 

As stated above, dewatering approval should only granted after the proponent has entered into a make good agreement with each potentially affected bore owner.

 

Private make good agreements can meet all the tests referred to above. In both parties’ interests the agreement must lay out a process for gathering and supplying to both parties the necessary up to date data and fact and independent expert assessment. Both parties require that information as evidence in the event a make good claim arises. The resource company’s right to challenge a make good claim in court must be respected. The onus of proof of damage and its cause is on the bore owner and the standard of proof is demanding, so that the agreement must ensure the necessary data and fact are available if needed.

 A government-sponsored standard make good agreement would be appropriate, but that should be the extent of the Government’s involvement.

Areas in Surat Basin where aquifers will be impacted by coal seam gas
Prepared by the Office of Groundwater Impact Assessment
Managing groundwater impacts of coal seam gas

 

 Previous published related posts

The Newman Government’s Water Act amendments: Part 1 - Deregulation of the Dewatering of Mines

The Newman Government’s Water Act amendments: Part 2 - Uncoordinated Approval System

One lousy sentence



Treasurer Tim Nicholls in Gladstone Harbour
source: Courier Mail

One lousy sentence given grudgingly by the Qld treasurer, Tim Nicholls, gives no justice and portrays no understanding what farming families and other landowner...s have been subjected to in the unleashing of the CSG colossus.

Tim Nicholls is quoted in the Courier Mail article, Liquefied coal seam gas shipment set to leave Gladstone, as saying, “landholders had to be acknowledged for the sacrifice and trouble they had been put to as CSG companies moved onto their land.”




It has been a lot more than just mere trouble, Tim. Try non-disclosure of information; isolate, divide & conquer; lying; pressured negotiation; bullying; ambushing with contrived bluffs; tactics to apply pressure; limited, miserly compensation; landowners time uncompensated; stress; complete disregard & disinterest in how agricultural management systems can work in with a gas field; the co-existence myth; gates open; weeds; loss of underground water; no solution for a mountain of salt brought to the surface; loss of amenity of living; roads destroyed; dust; noise; sense of community lost; liability from contamination; diminution of property value.

The list continues.

The government has failed to govern for all. The Newman LNP government & preceding Bligh Labor government have not allowed the agricultural department to protect even the small percentage of good quality soils; the Department of Environment & Heritage has not been allowed to do its job; there was very limited legal aid made available & that did not continue; landowners suffering impacts ask government for help only to be fobbed off by organisations devised by government, Gasfield Commission & CSG Compliance Unit, with the purpose of to be seen to be doing something and to dampen down the voice of the rural landowner to be heard in the urban communities.

On top of all that with landowners already suffering significant imbalances of power the Newman government systematically made significant legislative changes that removed what few rights landowners had.

What for? This Courier Mail reveals the answer; this first ship alone has loaded $50 million worth of LNG. When the industry gets into full stride in 2017 there will be 360 ships leaving the harbour loaded with LNG every year. The Qld government is expected to rake in $500 million annually. 

LNG tanker, Methane Rita Andrea, docked at QGC LNG plant at Curtis Island
photo sourced Gladstone Observer

Peter Spencer: Court diary

The case Spencer v. Commonwealth of Australia began being heard in the Federal Court, Sydney on the 24th November, described as the biggest property rights case since Mabo.  

This post will feature the daily updates that Ian Hampton has been providing for the first week of the court case which will continue in the comment section below.

Please also check out a web page set up for Peter Spencer - Peter Spencer versus The Commonwealth
and also the Facebook page - Support Peter Spencer & Australian Farmers


Peter Spencer's farm in the high country in New South Wales, fondly named "SAARAHNLEE",
a combination of letters from his children's names. He no longer owns this farm having lost it in 2010

Day 1 of the trial 24th November

The most important event today was the opening statement by Mr Kirk, the barrister for the NSW Crown Solicitor's Office.

Two things stand out - BOTH respondents (Commonwealth and State) are flatly denying the existence of any informal agreement or understanding between the Commonwealth and the State beyond the applicable legislation and relevant published intergovernmental agreements. The thrust of the rest of his statement was that the State had the ability to restrict Spencer's ability to clear timber on his land under legislation that existed before the Commonwealth involvement in native vegetation legislation after Kyoto, and that consequently Clause 51 (XXXI) of the Constitution (Commonwealth must pay just terms compensation for property taken) does not "come into play"...

From what I can see - neither Peter or Alastair were fazed by Kirk's opening statement.


Day 2 of the trial 25th November

In his opening statement, Mr Lenehan for the Commonwealth covered pretty much the same legal ground as Mr Kirk did the day before for NSW.

By contrast, in his oral opening statement, Peter Spencer started with the Magna Carta and traced the evolution of freehold title in Australia back to the foundation of Government in 1840 .

Spencer then went through the history of international, national and state government agreements and legislation linking environmental issues and native vegetation. Spencer traced a line of continuity from the First International Conference on Environmental Issues in 1950 and its Native Vegetation Advisory Workshop through to 2003. Important steps along the way included the 1972 International Conference Declaration of the UN on Human Environment, the 1992 Rio Earth Summit (the UN Framework Conference on Climate Change) where Australia signed the treaty, the resulting 1992 National Strategy for Ecologically Sustainable Development (signed by PM Hawke) and the 1992 National Greenhouse Strategy which was endorsed by the Council of Australian Governments (COAG).

In effect, the intention to take the benefit arising from the sequestration of carbon, through the native vegetation legislation of 2003 as the primary mechanism for meeting Australia's greenhouse gas commitments, was the logical outcome of the 1992 strategy.

So, the three opening statements have been completed - GAME ON.

Tomorrow morning the Judge will decide which documents from both sides are in or out. The afternoon will be taken up with the expert witness evidence of Dr David Evans for Spencer and by Mr Sturgess, a senior bureaucrat for the Commonwealth.




Peter Spencer and Alastair McRoberts boarding the train after Day 2

 

Day 3 of the trial, Wed 26th November

Peter Spencer had a good day in court today. Just as important, Peter is growing in confidence and really finding his feet as a self litigant.

The day started with the Judge expressing concern about the unavailability of former Howard Government Minister, Dr David Kemp when the Spencer team attempted to serve him with a subpoena last week.

The CGS and NSW Crown Solicitor then tried to "knock out" all of Spencer's witnesses with case law. Justice Mortimer adjourned the hearing to consider these submissions. She returned after a short break to confirm that the evidence of the two expert witnesses on the UNFCCC National Carbon Accounting System, scheduled for today could go ahead. The examination of these two witnesses - Dr David Evans for Spencer and Mr Sturgess for the Commonwealth went well.

Justice Mortimer will announce her decisions about the remaining witnesses tomorrow morning.

A long way to go - but definitely as good day for Peter Spencer.


DAY 4 of the trial, Thursday 27th  November

Justice Mortimer "knocked back" only one of Peter Spencer's nominated witnesses, in response to submissions from the Commonwealth and NSW Crown Solicitor to "knock out" all of them. This does not substantially affect Peter's case - good news.

Since then, Peter has been in the witness box. At the end of the second session, Peter was still being cross examined by the CGS (for the Commonwealth) and NSW Crown Solicitor. Consequently, we are not allowed to report on any of this until after he completes his evidence - scheduled to be lunchtime tomorrow.


DAY 5 of the trial, Friday 28th November

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

Peter Spencer was cross-examined by the two barristers for the Commonwealth Government and the NSW Government until the end of the afternoon session. The cross examination is now over. Unfortunately, we can't report on this yet because Peter is still under oath. He is returning to the witness box on Monday, allowed 15 minutes to provide corrections to any mistakes he may have made in his oral evidence.

Next week will be mostly taken up with witness statements and cross-examination.

On Tuesday, Justice Mortimer will announce which documents from both sides are admissible and which are inadmissible based on the arguments from the opposing sides.

The Court has ordered that Dr David Kemp, former Howard Government Minister for Environment and Heritage contact Peter Spencer about his availability to appear as a witness next week.

The team: the extended Kennedy family, and supporters Dan and Jeannie Hughes.




Previous related posts

PETER SPENCER NEEDS YOUR HELP

 

Peter Spencer: Farm associations where is your support now?

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PETER SPENCER NEEDS YOUR HELP

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

Update November 30 - A new post where daily updates of the court proceedings by Ian Hampton. Please go to  Peter Spencer: Court diary

by Ian Hampton, Cooma, on behalf of Peter Spencer

Tony Abbott as opposition leader at the Peter Spencer
farmers rights rally February 2010
photo sourced farmonline

 Peter Spencer will need financial assistance to enable his “day in court”.  After 8 years of effort, countless directions hearings and a notable success in the High Court of Australia in 2010, his case Spencer v. Commonwealth of Australia will be heard in the Federal Court, Sydney from the 24 November this year.

 Spencer has done his homework and believes he has the ammunition to prove his case, however the problem is that the Australian Farmers Fighting Fund (AFFF) which has been financing Spencer’s courtroom case in the Federal Court has withdrawn its funding with the finish line in sight.  The AFFF have offered no coherent reasoning for this withdrawal of funding and actually state that they are still considering the issue, however the time is now and Spencer needs funding to continue.    

Spencer’s immediate problem is that he is required to pay up-front costs including the expenses of the witnesses he calls, filing, record keeping, printing and stationary costs.  At this time his own finances are exhausted because of the eight year war of attrition he has fought against the might of the Australian Government Solicitor representing Australian Governments of both major parties. The other respondent to the case is the Crown Solicitor’s Office of NSW representing the NSW Government.

As discussed below, this is enormously important for farmers directly affected by native vegetation legislation, and indirectly for all private property owners.

BACKGROUND

Many regional people will remember Peter Spencer's 52 day hunger strike in late 2009 and early 2010 over farmer's property rights and its link to Australia's climate change commitments.  The hunger strike led to a more than 3,000 strong farmers rights rally in front of Parliament House in February 2010 and the Senate Inquiry into Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures later in the same year.

Spencer’s case and the hunger strike arose out of his inability to properly farm his property "Saarahnlee" at Captains Flat near Cooma, NSW following imposition of more stringent native vegetation laws by the NSW Government in the early 2000s.



IMPORTANCE OF THE CASE



Alan Jones with Peter Spencer outside Parliament House, Feb 2010
photo sourced, Farmers’ fight for rights won’t end with protest 

If Spencer wins, the likely outcome is that the case will be treated as a test case which should result in a flow on of compensation to the thousands of Australian farmers who have been similarly affected by the imposition of native vegetation legislation after the meeting of the Kyoto Protocol target in 1999.

 Further, Spencer v. Commonwealth of Australia is the most important property rights case to be heard by any Australian court since Mabo.  If Spencer succeeds this case will re-assert the primacy of the Australian Constitution over the on-going erosion of private property rights by Australian Governments of all persuasions at all levels of government.

CAN SPENCER WIN?

Yes, if the case is truly heard.

Spencer’s case hangs on Section 51(xxxi) of the Australian Constitution which allows the Parliament to make laws for the acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws.  The issue is that while the Commonwealth must pay compensation, the States are not required to.  The basis of Mr Spencer’s claim is that state and federal governments colluded to introduce land clearing legislation to lock up carbon on Australian farms through native vegetation legislation so Australia could meet carbon targets in the Kyoto protocol.  To win, Spencer must prove the intent of the Commonwealth to obtain carbon credits enabled by the “Australia Clause” inserted into the Kyoto Protocol Agreement in 1999, orchestration by the Commonwealth of the imposition of native vegetation legislation by the NSW Government (in Spencer’s case), and that the Commonwealth actually obtained gain through the resulting carbon credits which are clearly shown in the IPCC carbon accounts following application of the native vegetation legislation.  The IPCC accounts clearly show that these carbon credits have enabled Australia to meet its carbon targets set in the Kyoto protocol.  In essence this is Spencer’s trump card because it can be clearly shown that the Commonwealth has gained through the stored carbon.

The more important issue is that THIS IS A CASE THAT MUST BE HEARD.  This is a once in a generation opportunity for the courts to reassert the primacy of the Australian Constitution over the on-going machinations of Australian Governments at all levels to restrict and control private landowners use of their land.

HOW TO ASSIST

The NSW Regional Community Survival Group Fighting Fund account is now dedicated to assisting Peter Spencer’s court case.  The RCSG is based in Tottenham NSW, and is an incorporated not for profit group with a long history of fighting for farmers rights and assisting farmers.

Electronic transfers to the "Fighting Fund" can be made to the following account:

BSB 032646    Westpac Dubbo

Account No     494974

To enable record keeping - please “label” the transfer with your name.  If you want a receipt – send either an e-mail or fax to Lesley Hillam -

e-mail address lesley.hillam@bigpond.com

fax number 02 6892 4449

 

 

***************    

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”.

.