Page:Government of the Russian Federation v Commonwealth of Australia.pdf/9

Jagot J

generally; and further, that the termination of the relevant lease by the Act "is not for a purpose in respect of which the Parliament has power to make laws". Otherwise, the GRF submits that the Act is contrary to s 51(xxxi) of the Constitution because by terminating the lease the Commonwealth acquired property and therefore just terms must be provided for the Act to be valid and, at present, the Act does not provide for just terms because s 6(1) is conditional. The section provides only that "[i]f the operation of this Act would result in an acquisition of property" then "the Commonwealth is liable to pay a reasonable amount of compensation".

21 The GRF also submits that this Court should grant it the interim relief because the balance of convenience and interests of justice favour that grant. In this regard, the GRF relies on the affidavit of Dr Pavlovsky to the effect that if it does not remain in possession of the Land, the GRF "will necessarily incur great expense demolishing the improvements and undertaking replacement construction works" which will also absorb further time under its lease. On the other hand, according to the GRF, the Commonwealth will suffer no prejudice because on the last occasion when the lease was purported to have been terminated, the GRF was allowed to remain in possession of the Land. The GRF submits that there has been no change in circumstances between the purported termination of the lease and the present day.

22 In its submissions, the GRF emphasises that: in truth, this is a dispute between two parties; there would be no public detriment occasioned by it remaining in possession of the Land pending the outcome of the dispute; the undertakings it proffers ensure that the status quo would be maintained; the Prime Minister has already stated that there was no security risk from a person remaining on the Land; and, as I have already mentioned, the GRF considers it would have to demolish the buildings on the Land if the Commonwealth were to take possession and the GRF was ultimately successful in its challenge to the validity of the Act.

23 The GRF further submits that it is important that the Land remained National Land, that is, land available to be leased for embassy purposes. According to the GRF, this, amongst other things, demonstrates that the Act does not relate to any public purpose of the Commonwealth, thereby supporting the GRF's case that there is no support for the Act in any relevant head of Commonwealth power. It also submits that no explanation had been proffered for the apparent change in the Commonwealth's position from that in 2022 where, despite a purported termination of the lease, the Commonwealth was willing to enable the GRF to remain in possession of the Land pending the determination of the proceedings, thereby preserving the status quo.