Spencer v Commonwealth of Australia [2015] FCA 754

FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2015] FCA 754 Citation: Spencer v Commonwealth of Australia [2015] FCA 754

Parties: PETER JAMES SPENCER v COMMONWEALTH OF AUSTRALIA and STATE OF NEW SOUTH WALES

File number: ACD 24 of 2007

Judge: MORTIMER J

Date of judgment: 24 July 2015

Catchwords: CONSTITUTIONAL LAW – s 51(xxxi) conditions financial assistance power under s 96 Constitution – Natural Resources Management (Financial Assistance) Act 1992 (Cth) and Natural Heritage Trust of Australia Act 1997 (Cth) characterised as laws supported by s 96 – s 96 agreements between Commonwealth and State pursuant to those laws – no contravention of s 51(xxxi) – consideration of practical operation and effect of federal laws, intergovernmental agreements and state legislation CONSTITUTIONAL LAW – s 51(xxxi) Constitution – whether state laws restricting native vegetation clearance effected acquisition of bundle of rights in farming property – state laws effected "taking" of bundle of rights – no acquisition where proprietary rights sterilised by regulatory control without acquisition of a benefit or advantage of a proprietary nature – relevance of history of regulatory control – no contravention of s 51(xxxi) TORTS – whether any action on the case for legislative and executive conduct alleged intentionally to inflict harm– no correspondence with Northern Territory v Mengel or James v Commonwealth – no cause of action established – no unlawful conduct – no intention to inflict harm – failure to prove any damage caused by impugned conduct

Legislation: Constitution cl 5; ss 51(xxxi), 61, 96, 106, 116 Evidence Act 1995 (Cth) ss 76, 136 Federal Court of Australia Act 1976 (Cth) s 31A Natural Heritage Trust of Australia Act 1997 (Cth) ss 3, 8, 10, 15, 16, 17, 19, 30, 31, 40 Natural Resources Management (Financial Assistance) Act 1992 (Cth) ss 3, 4, 5, 7, 8, 9 Federal Court Rules 2011 (Cth) r 4.05 Carbon Rights Legislation Amendment Act 1998 (NSW) Clean Air Act 1961 (NSW) Clean Waters Act 1970 (NSW) Conveyancing Act 1919 (NSW) ss 87A, 88AB, 88EA, Pt 6 Div 4 Crown Lands (Continued Tenures) Act 1989 (NSW) ss 3, 6; Sch 2 cll 6(2)(b), 6(3); Sch 6 cll 2(2)(b), 2(3)(a) Crown Lands Legislation Amendment (Carbon Sequestration) Act 2006 (NSW) Endangered Fauna (Interim Protection) Act 1991 (NSW) Environmental Offences and Penalties Act 1989 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Pt 3 Div 2, Pt 3A Forestry Act 1916 (NSW) s 27(1) Forestry, Soil Conservation and Other Acts (Amendment) Act 1972 (NSW) National Parks and Wildlife Act 1974 (NSW) ss 118A, 118B, 118C, 118D Native Vegetation Act 2003 (NSW) ss 3, 12, 19, 20, 22, 23, 29, 32(b), Pt 4 Native Vegetation Conservation Act 1997 (NSW) ss 3, 5, 6, 7, 9, 10, 11, 12, 14, 18, 21, 24, Pts 2, 3, 4, 5, Pt 7 Div 1 Soil Conservation Act 1938 (NSW) Preamble, ss 3, 21A, 21B, 21C, 21D, 22A, 22B, 22C Threatened Species Conservation Act 1995 (NSW) Native Vegetation Regulation 2005 (NSW) State Environmental Planning Policy 46 – Protection and Management of Native Vegetation (10 August 1995) cll 2, 3, 5, 6(1), 7, 11; Schs 1, 3 State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation (Amendment No 1) (22 December 1995) cl 7 Kyoto Protocol to the United Nations Framework Convention on Climate Change (11 December 1997). Opened for signature 16 March 1998. 2303 UNTS 162 arts 3, 5, 7, 8, 25(3), Annex B. (Entered into force 16 February 2005). United Nations Framework Convention on Climate Change (9 May 1992). Opened for signature 4 June 1992. 1771 UNTS 107 arts 2, 4(1)(a), 12, 17, 23. (Entered into force 21 March 1994). Kyoto Protocol Conference of the Parties, Decision 16/CMP.1, "Land Use, Land-Use Change and Forestry" (UN Doc FCC/KP/CMP/2005/8/Add.3, 30 March 2006). Constitution of the United States of America Fifth Amendment