Government of the Russian Federation v Commonwealth of Australia

The Government of the Russian Federation (the plaintiff) sought interlocutory relief from the High Court of Australia against the Commonwealth of Australia (the defendant). The dispute concerned the validity of the *Home Affairs Act*, which had recently come into effect and purported to terminate a 99-year lease held by the plaintiff over land in the Australian Capital Territory. This land had been leased to the plaintiff in 2008 for the construction of a new embassy complex. The plaintiff's application sought to restrain the defendant from re-entering the land and taking steps to re-lease it pending the determination of its challenge to the *Home Affairs Act*.

The court was required to determine the legal issues surrounding the plaintiff's application for an interlocutory injunction. Specifically, the court needed to consider the appropriate legal test for granting such an injunction in circumstances where the validity of a legislative act is challenged, and whether the balance of convenience favoured maintaining the status quo by allowing the plaintiff to remain in possession of the land. Furthermore, the court was to consider the serious questions to be tried regarding the validity of the *Home Affairs Act*, including whether it was enacted within the Commonwealth's constitutional powers, particularly in relation to the acquisition of property on just terms under section 122 of the Constitution.

The plaintiff argued that no public detriment would be occasioned by granting the injunction, as the Act primarily affected only the plaintiff and the Commonwealth. It contended that the undertakings offered would maintain the integrity of the land and the existing consular building. The plaintiff also submitted that the Commonwealth's stated security risk concerns were unsubstantiated, citing the Prime Minister's comments that security personnel on the land did not pose a threat. The plaintiff further argued that the *Home Affairs Act* was beyond the Commonwealth's power, as its sole purpose was to terminate the lease rather than acquire the land for a new Commonwealth purpose, and that the termination of the lease constituted an acquisition of property that should be on just terms. The court considered evidence including affidavits from the Russian Ambassador and a solicitor for the plaintiff, as well as an affidavit from the defendant and a joint bundle of authorities.