Page:Government of the Russian Federation v Commonwealth of Australia.pdf/11

Jagot J

it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires."

28 In this case, the enactment of the legislature, the Act, provides for immediate termination of the lease. The balance of convenience is affected by the perceived strength of the prima facie case. I do not perceive the GRF's case for invalidity of the Act to be a strong one. Indeed, it is difficult to identify a serious question to be tried in circumstances where there are several constitutional heads of power which, prima facie at least, would appear to provide ample support for the terms of the Act. These include s 122 of the Constitution, s 51(xxix) of the Constitution with respect to "external affairs", and, of course, s 51(xxxi) itself.

29 As the Commonwealth has also submitted, insofar as the GRF relies on a proposed absence of just terms, it is difficult to understand that proposition merely from the conditional character of s 6(1) of the Act. Section 6(1), in terms, provides that if there has been such an acquisition of property, then reasonable compensation will be paid. In these circumstances, my preliminary evaluation is that the case for relief is, as I have said, difficult to understand on the basis of the submissions that have been put to date.

30 Be that as it may, there is also the problem that the GRF does not confront the reality of the fundamental change in circumstances between the position in 2022 when the Commonwealth permitted the GRF to remain in possession of the Land, and the position as at today's date. The change in circumstances is the legislative action that the Commonwealth has taken through the provisions of the Act to terminate the lease in the clearest possible terms.

31 In those circumstances, I accept the submission for the Commonwealth that, based on the reasoning of Mason A-CJ in Castlemaine Tooheys Ltd, there would need to be compelling grounds in order to grant the GRF the relief it seeks in its application.

32 In respect of the other issues which the GRF has raised, I also accept the submission for the Commonwealth that the evidence provided in relation to what is described as the "integrity and security" of the buildings is too vague and nebulous to provide any particular evidence of irreparable damage to the GRF. I accept also that insofar as this might be recourse to some kind of submission about the GRF's own national security interests, the Court cannot purport to balance the weight between what might be the national security interests of the GRF and what might be the national security interests of the Commonwealth.