Wednesday, September 1, 2010

The Battle Has Been Won, But The Real War Is Just Beginning.

The High Court of Australia has today handed a victory to Peter Spencer. Mr. Spencer , you may remember, is the New South Wales farmer who came to international prominence through staging a hunger strike at the top of a pole at the beginning of this year. For 52 days he camped out on a platform with minimal shelter perched high above the ground in a desperate attempt to promote his cause. That cause is property rights, and in particular the constitutional guarantee of proper compensation “on just terms” for the compulsory acquisition of property. Mr. Spencer had argued for years that the provisions of the New South Wales Native Vegetation Act which prevented the clearing of land in compliance with the Commonwealth Government commitment with the Kyoto Protocol for carbon reduction amounted to the removal of his property rights.

Mr. Spencer had previously taken this matter to the Federal Court of Australia which summarily dismissed his claim by ruling that it should not be heard on the grounds that there was no reasonable prospect of success. Mr. Spencer then appealed to the full bench of the Federal Court to for leave to have his claim heard, but that appeal was also rejected with the full bench upholding the original ruling that there was no reasonable prospect of success. Finally, Mr. Spencer has appealed to the High Court of Australia seeking leave to have his case heard. Today, the High Court has ruled that the Federal Court was wrong to refuse to hear the case, and has awarded costs to Mr. Spencer.

What this means is that Mr. Spencer now has the opportunity to argue his case in the Federal Court seeking recognition of his claim to property rights and compensation for the impact upon those rights by the combined effect of State and Federal legislation. It is a significant victory, but it doesn’t mean that Mr. Spencer has won his case just yet. It means that he has won the right to have his case heard, although that is in itself an important outcome. Most of us would like to think that we have a system of justice that allows us to at least have our grievances heard rather than dismissed out of hand. Now at least that much has been achieved, so that the vital question of just what our property rights really amount to can be properly examined.

The battle has been won, but the real war is just beginning.

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