Australia’s relations with Russia have what you might call a colourful history. Spying has been at the heart of it.
Tony Abbott famously vowed to shirtfront president Vladimir Putin in 2014 after Australians were murdered when flight MH17 was shot down over Ukraine and intelligence identified Russia as the perpetrator. The episode of prime ministerial bombast hardly brought justice for the dead but it was a reminder of the longstanding tensions between the two countries and especially their intelligence services, ASIO and the KGB.
Little wonder, then, that after Russia’s 2022 invasion of Ukraine the Albanese government moved to reclaim land leased to the Russian Federation since 2008 for its proposed new embassy just 300 metres from Parliament House in Canberra.
Hardly surprising, either, that the furious Russians tried to injunct the move, with a lonely diplomat staging a sit-in until the failed legal bid forced him offsite and back to their old digs three suburbs away.
Equally, it should astonish no one that a country which ignores the world’s outrage at its brutal expansionist behaviour was not willing to leave it at that. Russia is again taking Australia to the High Court. Having paid $2.75 million for a ninety-nine-year lease over the land seventeen years ago, with a peppercorn rent of 0.5 cents a year, it wants the land back or at least compensation.
Russia has hired Australia’s highest profile constitutional barrister, Bret Walker SC, and quietly filed submissions in April, while the federal election campaign was dominating political and media attention.
The Commonwealth filed its response late last week. There isn’t a hearing date yet. But it’s going to be a fascinating case.
This is not the first time the matter has been before a court. Attempts to evict Russia from the site began in 2022 just months after the Ukraine invasion, though the federal government argued that had nothing to do with them. The National Capital Authority moved to terminate the lease, citing a failure to build within three years. Planning approval had been granted in 2011 but construction encountered repeated delays. After Russia occupied Crimea in 2014, it faced international sanctions. Four years on, it complained that the restrictions, including on bringing in Russian construction workers, were causing more delays.
But it wasn’t until August 2022 that the NCA moved to take the land back. Russia went first to the Federal Court, citing the fact that the lease granted “quiet enjoyment of the Land without interruption by the Commonwealth” provided it paid all rates and charges — including the peppercorn rent, within one month of any Commonwealth demand for it — and abided by other stipulations.
On 31 May 2023, the court found in its favour, ruling the termination and attempted eviction invalid.
Two weeks later, prime minister Anthony Albanese announced the government was again terminating the lease, this time on the basis that having a new Russian embassy so close to Parliament House posed a national security threat. Albanese unveiled specially drafted legislation to repossess the land, rushing it through parliament with the opposition’s support.
This legislation is the subject of the new legal case. Russia argues the Home Affairs Act 2023 is unconstitutional. In this, there are potentially uncomfortable echoes of cases past.
Postwar suspicion and hostility between Australia and Russia go back to 1951, when prime minister Robert Menzies tried to ban the Communist Party. Menzies drafted and passed special legislation that faced High Court scrutiny after the Communist Party, its members, and a slew of unions challenged its validity. In what Albanese doubtless hopes doesn’t prove to be a precedent, the court upheld their arguments and threw out the law.
Menzies then went to a referendum, seeking to amend the constitution to give parliament power to make such laws when national security was at stake. The Labor opposition campaigned against the proposal on civil liberties grounds. Menzies lost.
Three years later, in 1954, the issue of Communist influence in Australia flared again with the dramatic defection of then Soviet diplomat spy Vladimir Petrov and his wife, Evdokia. Amid claims Soviet spy rings were operating in Australia, fuelled by the cache of documents Vladimir Petrov handed to ASIO as the price of his protection, Menzies established a judicial inquiry.
The royal commission on espionage opened just ahead of the 1954 election, holding its first hearings less than two weeks before polling day. Labor won an overall majority of the vote but Menzies’s Liberal-Country Party Coalition won more seats and was returned.
The royal commission ran for ten months and heard evidence that Petrov’s papers had named three of Labor leader H.H. “Doc” Evatt’s staff as Soviet sources. Enraged, Evatt accused Menzies of organising the Petrov defections and planting the documents for political gain. The whole sequence led to the Labor split of 1955 and the formation of the breakaway Democratic Labor Party. Capitalising on the chaos, Menzies called an early election the same year. The DLP directed preferences to the Coalition, which was again returned to office — where it would stay through five more elections for another seventeen years.
The consequences of the Petrov affair reached beyond domestic politics. Australia’s 1954 refusal to relinquish Petrov to his former masters prompted the Soviet Union to recall its embassy staff and expel Australia’s diplomats in Moscow, severing ties for what would become five years. By the time Soviet diplomats returned to Australia in 1959, ASIO had bugged their longstanding and heavily fortified embassy premises on Canberra Avenue in the suburb of Griffith.
The listening devices didn’t elicit much — it seems the Russians were onto them — so ASIO rented a room above the funeral parlour across the road and undertook surveillance from there. Having had the same tired old compound for decades, and with that kind of welcome back, it’s understandable the Russians eventually began looking to move.
Deliberations over possible new embassy sites went on for years, with both governments vetoing proposed locations, presumably motivated to maximise their own surveillance interests and kybosh others’. In 2008, they finally settled on the site in Yarralumla, close to Parliament House, and Russia got an ancillary building up but not the embassy itself. Then things soured again.
When Albanese’s eviction legislation passed in June 2023, Russia asked the High Court to put the repossession on hold until it could rule on the legislation’s validity. Justice Jayne Jagot rejected that bid. In 2024, it won leave to have the question of the legislation’s validity referred to the Full Court.
Its core argument is that the government’s legislation lacks the necessary constitutional head of power to make it a valid law.
In her 2023 ruling, Justice Jagot pointed to section 122 — the power to make laws with respect to territories — and s51 (xxix) — the external affairs power — as likely supporting the validity of the Home Affairs Act. She also pointed to s51 (xxxi), which lets the Commonwealth acquire property for “any purpose” over which it has law-making power, provided the acquisition is “on just terms,” meaning there must be appropriate compensation.
In its submissions to the Full Court, Russia argues Jagot was wrong about the application of powers. Among its citations are the 1951 Communist Party case and the recent case in which the Yunupingu family, on behalf of the Gumatj people of Arnhem Land, won the right to compensation for land acquired for mining.
Russia argues the external affairs power doesn’t apply because the government isn’t terminating Russia’s presence in Australia, only its access to that piece of land, and it “cannot seriously be suggested” that this affects Australia’s international relations, notwithstanding the litigation it has generated.
It says the government has presented no evidence either to parliament or the court that Russia was planning “an internal attack” which might justify a national security concern. It also argues the land is surrounded by other countries’ diplomatic missions and such concerns can’t be engaged simply because it’s near Parliament House.
Russia says the s122 territories power can’t apply because there’s an insufficient link to the Australian Capital Territory, given the law doesn’t relate to governing the ACT and isn’t an ACT statute. It says if the court disagrees, and s122 applies, then so must the provision for “just terms.” In other words, either the Act is invalid, in which case the lease stands, or it’s covered by a head of power, in which case compensation is payable.
But it also notes the constitution stipulates that property acquisition must be for “some purpose” and the government isn’t planning to use the land for anything else. It’s still designated for an embassy — it just doesn’t want Russia as the occupant.
In response, the Commonwealth insists the legislation is covered by “at least” the external affairs and territories powers.
It argues the direct connection to the ACT is that the land is located there. “It is hard to see how the connection with the Territory could be any clearer,” it says.
The Commonwealth argues that the legislation’s bespoke relevance to the Russian embassy site and the fact it overrides any conflicting state, territory or federal law gives it “sufficient connection with Australia’s foreign relations” with Russia to enliven the external affairs power.
The Commonwealth agrees it isn’t planning some other purpose for the land, as s51 describes. Though it offers different reasons, it also agrees the acquisition provision doesn’t apply and says therefore compensation isn’t payable. It argues it would be “incongruous” to compensate Russia for steps taken to stop it posing a threat to Australia.
Although the legislation itself doesn’t mention national security, the government emphasises its explanatory memorandum, which says it aims to “protect Australia’s national security interests with regard to land within the area adjacent to Parliament House.”
The Commonwealth won’t disclose the “highly classified” ASIO information on which its concern is based, insisting that revealing it would “be expected to cause serious damage to the national interest.” It says the court can infer the information’s importance from the fact it came from ASIO and parliament made a whole new law in response.
The Commonwealth said the legislation’s urgency was due to “immediate national security risks” if Russia were allowed to exercise its interests over that specific block. Albanese said at the time that Russia could engage in “potential interference” with activity occurring at Parliament House.
“Parliament’s power is at its zenith when it legislates to protect its own security, because if parliament cannot ensure the security of the very place where it meets then it cannot ensure a practical precondition to the exercise of Commonwealth legislative power,” the Commonwealth’s submissions say.
There are still a few steps before the judges hear the case. Any intervenors on the Commonwealth’s side have until 13 June to serve submissions and Russia has until 27 June to reply to what the Commonwealth has said, with legislative references to be filed in early July.
Then it will be up to their honours.
With the court’s politically cataclysmic 2023 ruling — the one that invalidated indefinite immigration detention — still a fresh trauma, the Albanese government will very much be hoping for victory this time.
Imagine handing back the keys to Russia to set up effectively across the road from the PM’s office, or forking out compo for a real estate dispute when Putin won’t even acknowledge his country’s role in the murder of Australians, far less offer any kind of restitution.
The Commonwealth really can’t afford to lose. No doubt the parliamentary drafters are working on a revised, 2025 version of the Home Affairs Act, just in case. •
