Spencer v Commonwealth of Australia. Country/Territory Australia Type of court National - higher court Date Sep 1, 2010 Source UNEP, InforMEA Court name High Court of Australia Judge French,Hayne, Heydon, Crennan, Kiefel and Bell. Reference number [2010] HCA 28 Language English Subject Land & soil, Wild species & ecosystems, Legal questions Keyword Land tenure Land-use planning Protected plant species Protected animal species Protected fish species Protection of species Foreign land tenure Land clearing Abstract Mr Spencer owned a property at Shannons Flat, New South Wales known as "Saarahnlee". The property is subject to the The State statutes prohibited the clearing of native vegetation other than in specified circumstances. As a consequence, Mr Spencer claimed that they made Saarahnlee unsuitable for commercial farming. He also claimed that they effectively amounted to the acquisition or expropriation of his interests in Saarahnlee. Mr Spencer further submitted that the State statutes operated with the effect or authority of two Commonwealth laws, namely, the Natural Resources Management (Financial Assistance) Act 1992 (Cth) and the Natural Heritage Trust of Australia Act 1997 (Cth). Mr Spencer claimed that the Commonwealth statutes were laws with respect to the acquisition of property other than on "just terms" as required by s 51(xxxi) of the Commonwealth Constitution ("the Constitution"), and therefore, were invalid. On 26 August 2008, Emmett J of the Federal Court of Australia dismissed Mr Spencer's matter. This was on the basis that he had failed to identify any relevant Commonwealth law with respect to the acquisition of property. On 24 March 2009, the Full Federal Court unanimously dismissed Mr Spencer's appeal. The Court found that Mr Spencer could not surmount the following fundamental problems with his claims: (1) the authoritative statements in Pye v Renshaw [1951] HCA 8 concerning the operation of ss 51(xxxi) and 96 of the Constitution; (2) the decision of the New South Wales Court of Appeal in Arnold v Minister Administering the Water Management Act 2000 ([2008] NSWCA 338 see now [2010] HCA 3); and (3) the consequences of Mr Spencer accepting the validity of the State statutes. This meant that even if the Commonwealth statutes and inter-governmental agreements were invalid, the Native Vegetation Act 2003 would remain in force and impose the same prohibitions and restrictions on his property. Mr Spencer issued a Notice of Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth). The Commonwealth filed a draft notice of contention the grounds of which included that an exercise of power by the Commonwealth to grant financial assistance under s 96 of the Constitution was not vitiated if exercised for the purpose of inducing a State to exercise its powers of acquisition on other than just terms. [2010] HCATrans 55). On 12 March 2010 the High Court granted special leave to appeal. The High Court held that the case had not been a suitable one for the application of s 31A of the Federal Court of Australia Act. Mr Spencer had argued that the Commonwealth Acts formed part of a scheme or device designed to avoid the restrictions on Commonwealth legislative power found in s 51(xxxi) of the Constitution. The statement of claim referred to arrangements or understandings between the Commonwealth and the State of New South Wales beyond what appeared on the face of the relevant legislation and intergovernmental agreements. The Court noted that, in a case decided after the Full Federal Court's decision in this matter (ICM Agriculture Pty Ltd v The Commonwealth), three members of the High Court expressly left open the question whether a Commonwealth law might be characterised by reference to informal arrangements for the grant of financial assistance as a law with respect to the acquisition of property. Whether there were such arrangements in this case, and whether they were constitutionally significant, was not a question suitable for determination on a summary judgment application. The High Court held that, in light of the decision in ICM, it could not be said that Mr Spencer had "no reasonable prospect of successfully prosecuting the proceeding". The Court granted Mr Spencer special leave to appeal and allowed the appeal with costs. Full text COU-156804.pdf