Australia’s high court has dismissed Russia’s attempt to temporarily hold on to the site of its proposed new embassy in Canberra, describing its challenge to laws cancelling the lease as “weak” and “hard to understand”.
An hour after the ruling, a Russian official who had been squatting on the Yarralumla site left in a diplomatic vehicle. He didn’t say anything to waiting reporters.
Russia had on Monday morning launched an urgent application to temporarily prevent the Australian government from entering the site of its new embassy, while the court hears the main constitutional challenge against the federal legislation.
Russia expressed fears that the integrity of the partially completed embassy building, on which it has spent US$5.5m (A$8.2m) already, would be compromised if Australia was allowed on to the block.
The loss of integrity to the building could force Russia to demolish the structure if it was successful in its high court challenge and was later allowed to hold on to the lease, it argued.
Russia’s lawyers also told the high court that its continued possession of the land posed no security risk or otherwise prejudiced the Australian public.
In doing so, it pointed to the words of the prime minister, Anthony Albanese, who said last week that he had no concern about a lone Russian man squatting on the land, describing him as “some bloke standing on a blade of grass”.
“The stated position of the prime minister is that the security personnel of my client who is on the land … is not seemingly a risk,” Russia’s counsel Elliot Hyde told the high court on Monday.
But Tim Begbie KC, acting for the commonwealth, said Russia had failed to demonstrate that its constitutional challenge to laws passed earlier this month, stripping Russia of the lease, was compelling.
“Once that is accepted, their whole argument is over,” he said.
Justice Jayne Jagot agreed. She said Russia’s constitutional challenge against the laws appeared to be weak and difficult to comprehend.
Her evaluation of the case was that it was “weak, indeed, as I have said, often difficult to understand”. “There is no proper foundation for granting the interlocutory injunction as sought by the [Russian Federation],” she said.
Jagot described Russia’s suggestion that there could be some loss of integrity to the building as “too vague and nebulous”.
“There is no meaningful evidence to explain why the [Russian Federation] takes the view that it would have to destroy the buildings,” she said.
The federal government in mid-June passed legislation to cancel Russia’s lease, citing national security concerns over its proximity to parliament.
On Monday, Begbie told the high court that Australia had offered to not release the site while the constitutional challenge was heard.
Begbie said he had written to Russia’s lawyers on Saturday to make the offer but had heard no response.
In an apparent reference to the Wagner mutiny in Russia over the weekend, he said: “I do not criticise my friend for not responding to this letter. Russia has had other things on its mind over the weekend.”
Begbie argued that Russia’s challenge to the Albanese government’s laws cancelling the lease was weak. “It’s not just that they haven’t made a compelling case for constitutional validity, they’ve made absolutely no case,” he said.
Last year, the National Capital Authority attempted to cancel the lease on planning grounds, saying Russia had not progressed with works despite holding the site since 2007.
That prompted a separate case in the federal court, which settled this year. As part of that settlement, the commonwealth consented to orders that Russia be allowed to maintain possession of the site.
Hyde, acting for Russia, argued that there had been no explanation for the commonwealth’s sudden change in position.
But Jagot said the changed circumstances related to the laws passed this month, in which the federal parliament demonstrated its desire to strip the Russian government of the site.
Speaking on Monday afternoon just before the squatter left the site, Albanese said the court had made clear there was no legal basis for a Russian presence to continue “and we expect the Russian Federation to act in accordance with the court’s ruling”. The prime minister added he didn’t envisage any diplomatic mission for any country being built on the site in the future.
Here's the diplomatic vehicle as it carried the squatter away from the site. The white mini van remains idling just next to the perimeter fence of the partially completed building. pic.twitter.com/jglsQY73Vg
— Christopher Knaus (@knausc) June 26, 2023
It is currently unclear when the high court might hear Russia’s full constitutional challenge to the federal laws.
The Russian government maintains a diplomatic presence at its existing embassy in the Canberra suburb of Griffith.
