Thursday, January 07, 2010

Judgements against Spencer

I want to add to my note of last night on Peter Spencer. I noted another online forum which quotes from the judgement in the matter but gives the wrong year.

For the record the judgement is Spencer v NSW Minister for Climate Change, Environment and Water [2008] NSWSC 1059. While it does have the points quoted in its conclusion, which reads in part;

83 For the foregoing reasons, the remedies for judicial review of administrative action and for misleading and deceptive conduct or unconscionable conduct have not been made out. However, it is an extremely disheartening and sad occasion that a person, whose life and resources have been placed into rural property for the purposes of conducting a grazing and farming business, has been required to resort to this action.
84 Governments, not courts, make judgments about political policy relating to what, within reason, is for the benefit of the community. Mr Spencer does not dispute that the objects of the conservation policies adopted in the agreement between the Commonwealth and New South Wales are, at one level, for the benefit of the community. The Federal and State Governments have entered into a scheme to improve the environment and, in so doing, improve the lot of other rural and other proprietors. Nevertheless, they have done so at the expense of Mr Spencer.
85 While all members of society must accept that there will be restrictions on their activities for the “greater good of society”, when those restrictions prevent or prohibit a business activity that was hitherto legitimate, because of the area in which it is operating, and assistance is offered which does not fully compensate for the restrictions imposed, society is asking Mr Spencer, and people in his position, to pay for its benefit.

A more interesting decision was that made by (my old student politics mate) Justice Brereton in Spencer v Australian Capital Territory & Ors [2007] NSWSC 303. That judgement discusses the nature of the grant of title in land (paras 20-28) and the fact that any such title is always subject to the law, and that the Executive by contract or action (the grant of title) cannot bind the future acts of Parliament.

More pointedly Brereton J notes;

29 Fourthly, even if an acquisition of land were involved, there is no common law right to compensation where a person is deprived of property by a State law. A State parliament has the legislative power to deprive a person of property without just compensation, though by reason of Commonwealth Constitution, s 51(xxxi), the Commonwealth does not [Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399; see also Jerusalem-Jaffa District Governor v Suleiman Murra [1926] AC 321, 328; Bone v Mothershaw, [25]-[26]]. Commonwealth Constitution s 51(xxxi) imposes no constraint upon the legislative powers of the States [Pye v Renshaw (1951) 84 CLR 58, 79]. While some state statutes – such as (NSW) Land Acquisition (Just Terms Compensation) Act 1991 – provide for compensation in the event of such an acquisition, there is no right to compensation in the event of an acquisition under a State law which does not fall within the terms of such a statute.

Spencer tries to argue that the passing of the relevant law was an agreement between the State and Commonwealth and thereby tries to find some grounds for enacting the Federal constitution acquisition of prperty laws. As nothing the Commonwealth does can make the State pass the law, there is no way the Commonwealth ever acquires the property.

What remains weird is that Spencer is insisting on a meeting with the Prime Minister where his concerns are all in relation to State law. e really should be seeking to talk to the Premier of NSW.

Finally, the last para of Justice Rothman's conclusion is relvant. It states;

86 Nothing in the foregoing is intended as a criticism of either the current State or current Federal Government. These schemes were implemented by previous Governments both Federal and State, with bipartisan support. Nevertheless, it is a most unfortunate aspect of the operation of the scheme that a person in Mr Spencer’s position is effectively denied proper compensation for the restrictions imposed upon him by a scheme implemented for the public good. As earlier stated, ultimately that is a matter for government.

As I noted in my original post, from 2001 and 2004 Spencer's barrister in those proceedings was a member of parliament representing one of the parties in government over the relevant time. It would be interesting to see if he ever contributed to debate (or made an adjournment motion speech) on the topic.

(Peter King was also senior student in my first year at St Paul's College).

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