Spencer v Commonwealth of Australia [2010] HCA 28
The High Court has allowed the appeal from the Full Court of the Federal Court. This case relates to the Native Vegetation Conservation Act 1997 (NSW), which put restrictions on the clearing of vegetation on land in NSW. The Act was passed as part of bilateral funding scheme between the Commonwealth and NSW. The Act prevented Peter Spencer – a farmer who is famous for his hunger strike late last year – from clearing certain vegetation on his land. He argues that the scheme amounts to an acquisition of his carbon sequestration rights. He therefore argues that the Act or the State/Commonwealth agreement is invalid as an acquisition of property on other than just terms, contrary to s 51(xxxi) of the Constitution. The Judge at first instance, in reliance on Pye v Renshaw, gave summary judgment to the defendant on the ground that the constitutional restriction on acquisition of property does not apply to the States, regardless of whether the State legislation was brought about by a Commonwealth grant. Following this, the High Court decided the cases of ICM Agriculture and Arnold v Minister Administering the Water Management Act 2000 which found that s 51(xxxi) could apply to state legislation which is passed pursuant to a Commonwealth funding agreement.
Accordingly, the High Court today set aside the order striking out Mr Spencer’s claim. The case will therefore return to the Federal Court for hearing.
Additionally, according to the court listings, the High Court was also supposed to hand down its decision today in the appeal from Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd [2009] QCA 282, regarding the Octaviar litigation. However, the case has not come up on Austlii for me yet. I will update when more information comes to hand.
[[UPDATE: the decision in Public Trustee of Queensland v Fortress Credit is now up, see here]]
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