Page:Government of the Russian Federation v Commonwealth of Australia.pdf/6

Jagot J.

7 Section 7(3) provides that:

""Nothing in this Act affects the status of the land as National Land under section 27 of the Australian Capital Territory (Planning and Land Management) Act 1988.""

8 By s 7(2), it is specified that "[w]ithout limiting subsection (1), this Act has effect despite" any provision of a series of other Acts and Ordinances, including, relevantly:

""(c) the Consular Privileges and Immunities Act 1972;

(d) the Diplomatic Privileges and Immunities Act 1967;

(e) the Foreign States Immunities Act 1985"."

The GRF's case

9 On 23 June 2023, the Government of the Russian Federation, which I will refer to as the "GRF", filed a summons, a notice of a constitutional matter, and an interlocutory application. In the summons, the substantive relief sought is a declaration of constitutional invalidity of the Act. It is alleged that the Act is not supported by a head of legislative power and is contrary to s 51(xxxi) of the Constitution by reason of an alleged failure to provide for the acquisition of property only on just terms. The alternative relief sought is a declaration that the operation of the Act results in an acquisition of property to which s 51(xxxi) of the Constitution applies from the GRF otherwise than on just terms, such that the Commonwealth is liable to pay a reasonable amount of compensation to the GRF.

10 The interlocutory application seeks interim relief pending the determination of the application for declarations as to the invalidity or otherwise of the Act. The GRF, through its counsel, offers a series of undertakings, in effect being: (a) the usual undertaking as to damages; (b) to pursue the proceeding "in a timely manner for … its expeditious resolution"; (c) to maintain and keep the Land in a good condition and "bear full responsibility for any damage to the Land or its improvements and for any injury or loss suffered by any entrants to the Land on or after 16 June 2023"; (d) to indemnify the Commonwealth "in relation to any claims against" the Commonwealth for any such damage or injury or loss; (e) to "not carry out any further work on the Land … other than carrying out general maintenance … without the [Commonwealth's] prior written approval"; and (f) not to "remove any items or chattels from the Land other than that required to maintain and keep the Land in good condition".

11 On the basis of those undertakings, the GRF seeks an interim order that the Commonwealth, by its servants and agents, be restrained, until further order of the Court, from: