UPDATE, Day 7 of the trial, Tuesday 2 December

Today started with the Commonwealth and State putting forward their oral submissions for not allowing around 40 of Peter Spencer’s 200 documents. The main argument put forward by the respondents was that the documents should be removed because they are irrelevant. Peter Spencer was then given about 2 hours to argue the reasons why the documents should be allowed.

Both sides are now waiting for the Judge’s decision about the documents which is expected to be on Friday.

The program for the next two days is as follows:

The first witness will be Brian Plummer, a Tottenham farmer.
Mr Plummer will be followed by Mr Charles Armstrong and Mr Mal Peters, both former Presidents of the NSW Farmers Association and the three valuers – Mr Colin Davies for Spencer, Mr Bernie Sullivan and Mr Robert Connolly for the respondents.

Dr David Kemp – scheduled for 10:15AM

Dr Alan Moran, former Director of the Institute of Public Affairs as an expert witness for Peter Spencer


Rhonda Mitchell, James Sternhell, Dan and Jeannie Hughes who are Spencer supporters and regular attendees, in the Conference Room at the Court today.



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photograph – Peter Spencer and Alastair McRobert on suburban train after yesterday’s hearings

UPDATE, Day 6 of the trial, Monday 1 December

This morning, Peter Spencer had an opportunity today to correct any inconsistencies that came up in his examination last week. Peter had been under oath since last Thursday morning through to this morning. He coped with the grilling from the respondents’ senior counsel barristers who were determined to try and upset him.

Proceedings continued with three witnesses called by the State being government department employees. The cross examination of these witnesses was completed before the lunch break and the issue about the issued subpoena for Dr David Kemp was discussed.

Justice Mortimer issued an Order that former Howard Government Minister, Dr David Kemp appear as a witness.

The order followed a series of events:
• A subpoena was issued to Dr David Kemp dated 21 Nov, 2014. The attempts to execute the subpoena at that time failed when Dr Kemp’s office in Old Parliament House was approached.
• Last week, Justice Mortimer expressed her concern to the Commonwealth’s barrister about their knowledge of the situation. At the time making it clear that Dr Kemp’s availability was no reflection on the Australian Government Solicitor (AGS).
• The AGS indicated that it had been in contact with Dr Kemp.
• On Friday an order was made that Dr Kemp contact Peter Spencer as soon as possible.
• This morning Mortimer J was informed by submissions that Dr Kemp had not made contact with the applicant and sworn affidavits containing a number of events showing the difficulties while trying to serve the subpoena were handed to the Judge.

After some deliberations with the parties Justice Mortimer adjourned the Court hearing for 1½ hours while she reviewed the reasons for Dr Kemp being called as a witness.

Justice Mortimer returned and made orders:
1. The subpoena issued to Dr David Kemp dated 21 November 2014 be set aside.
2. Dr David Kemp attend at the trial of this proceeding on Thursday 4 December 2014 at 10.15 am, at Court 22B in the Federal Court of Australia, Law Courts Building, Queens Square, Sydney 2000.


Today the Spencer v. Commonwealth legal team is reading witness affidavits and preparing for questioning the 13 witnesses scheduled to appear this week and next week.

The admissibility of documents will be critical.  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.

Not only will what happens this week be critical, it also promises to be intensely interesting. Get along if you can – the sessions are 10:15 to 12:15 PM, and 2:15 to 4:15 PM. If you can’t get along – we will do our best to keep you informed in this blog.

An insight into Spencer’s motivation and understanding of the man can be drawn from something he said in 2010.

“My concerns are directed at the families of the hundreds of farmers who have suicided and the politicians who have failed to show any concern, compassion or morality for what the government has done to these families and the nation’s Constitution.”
~ Peter Spencer
From a news article by Online Political Editor, Samantha Maiden published in The Australian, 2010.


SPENCER v. COMMONWEALTH update Friday 28 November

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.

An article about Spencer v. the Commonwealth has been published in farmonline http://www.farmonline.com.au/news/



 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.


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.


 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.