High Court rejects injunction application by Russia over Canberra land

On 26 June 2023, the High Court dismissed an application by the Russian government for an injunction, restraining the Commonwealth from terminating a lease under the Home Affairs Act 2023 (Cth) (the ‘Act’).

The dispute arose over a large block of vacant land leased by Russia in central Canberra. Russia's lease was terminated by ACT planning authorities, on the basis of a failure to develop the site. This decision was successfully challenged by the Russians, leading the federal parliament to pass the Act for the express purpose of terminating the lease.

The reason for the termination was, per public announcements by the Albanese government, concerns that the proximity of the site to Parliament House made it a national security risk.

Given that alleged Russian spies operating under diplomatic cover have been recently expelled from at least two dozen countries, and have been involved in such subtle acts of statecraft in their host countries as poisoning civilians with nerve agents, these concerns are perhaps unsurprising.

The injunction was sought on an interim basis, pending declarations that (1) the Act was not supported by s 51(xxxi) of the Constitution (the power to make laws with respect to the acquisition of property on just terms), or alternatively (2) that the acquisition was not on just terms, and the Commonwealth was liable to pay the plaintiff a reasonable amount of compensation.

The Hon Justice Jagot dismissed the application, on the basis that the injunction that Russia sought had been overtaken by events. The Act provided for the immediate termination of the lease. The Act had commenced. So, the injunction sought to preserve a status quo that no longer existed.

Her Honour further noted that it was difficult to identify a serious question to be tried, as there were several constitutional heads of power that would likely provide “ample support for the terms of the Act”, including s 122 (passing laws in respect of Commonwealth territories), s 51(xxix) (external affairs), and s 51(xxxi) itself (acquisition of property).

The decision is available here: https://jade.io/article/1035734