No less than eight lawyers sat on the Commonwealth’s side of the Federal Court on Friday 20th April in Sydney to assist Mr Howard SC for the Commonwealth argue that the documents that Peter Spencer is asking discovery of were under Cabinet privilege, and disclosure to the court would be against all laws and principles with regards to the security and the protection of MP’s commentary and decision making in Cabinet.

Counsel for the Commonwealth argued that the disclosure of these documents to the Court could threaten International agreements and security.

The documents requested by Spencer to further substantiate his claim against the Commonwealth were highlighted in a High Court decision in September 2010 where the High Court ordered that Spencer’s case return to the Federal Court for the discovery of Commonwealth and New South Wales State Government documents in relation to Spencer’s case.

The Cabinet documents that the Commonwealth are claiming privilege are over are almost two decades old and surround Government policy and negotiations in line with the December 1997 Kyoto Protocol International Treaties in which Australia was a major player in the formulation of the Protocol and its rules.

At that time, there was extensive and rigorous research, debate and commentary by senior bureaucrats, scientists and government as to how Australia could negotiate rules into the Kyoto Protocol so that Australia’s participation would not affect Australia’s projected economic growth in the future.

The current frantic attempt by the Commonwealth to have the court order that Spencer be denied these documents that make up part of 4500 documents should send shivers down the spines of all fair minded Australians. One must ask the question, “What do they have to hide?” On hearing the Commonwealth’s no compromise attitude in regards to the 100 privileged documents referred, Justice Emmett J asked “If this was the response by the Commonwealth to any request for a cabinet document then how would Mr Spencer get justice?”

This argument will continue on the 7th June 2012 in the Federal Court Sydney were Justice Emmett has asked the Commonwealth to present final submissions over the four categories of documents over which the Commonwealth is claiming privilege with final instructions from the Commonwealth, and on that date Justice Emmett will make his decision on the matter.

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