Tag Archives: opening statement

SUMMARY OF DAY 2, TUESDAY 25 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.

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First day in Court for Spencer v. Commonwealth

Based on a submission from Peter this morning, Her Honour allowed a delay in Peter’s opening statement – now to be tomorrow afternoon.
Instead, the second respondent Mr Kirk for the NSW Crown Solicitor’s Office made his opening statement this afternoon and the first respondent Mr Lenehan for the Commonwealth Government Solicitor will make his opening statement tomorrow morning…
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 McRobert sitting beside Peter were fazed by Kirk’s opening statement.

Picture the scene:

The judge at the front….

On the left – Peter and Alastair McRobert, side by side assisted by Angela Muller and Jeannie Hughes sitting behind…

On the right – two barristers in cloaks and another 8 black clad solicitors from the CGS and NSW Crown Solicitor.

At the back – 10 Spencer supporters and one other (we think) from the NSW Department of the Environment… and NOT a single journalists.  What is going on – isn’t this case important?

A long way to go…. it has just begun……