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About this NPA

The Administrative and Constitutional Law and Human Rights (ACLHR) National Practice Area (NPA) includes the following matters:

Administrative Law

Constitutional Law

  • Matters arising under the Constitution or involving its interpretation.

Human Rights

This NPA does not cover appeals of ACLHR cases from a single judge of this Court, or a single judge of the Federal Circuit and Family Court. Such appeals (including Migration appeals) are made to the Federal Court under its appellate jurisdiction. More information about appeals in the Federal Court and Migration matters is available on the Court’s website.

Practice Notes

All practice notes are to be read with the Central Practice Note.  It is the essential guide to practice in the Federal Court in all proceedings.

The NPA practice note sets out the arrangements for the management of Administrative and Constitutional Law and Human Rights proceedings:

NPA practice note:

Other practice notes and Court developed guides which may be relevant to this NPA include:

General practice notes:

Guides:

Information to Assist Litigants

The Federal Court’s website contains extensive Information to assist Litigants, including how to start a matter and practices and procedures in the Court. This information may also be useful if you are starting a matter and are acting for yourself (that is, you do not have legal representation).

This information is procedural advice only and does not constitute legal advice. In addition, Frequently Asked Questions have been developed to assist litigants in this NPA:

Where can I find information to help me?

In addition to the Practice Notes, Guides and other information noted above, information can be found via the following links:

Who can I ask for information about the Court’s processes and practice?

You can ask Registry staff about court processes, filing and service of documents, Federal Court Rules 2011 (Cth) (Rules) or compliance with orders the Court has made.

For further information about how Registry staff can assist you and Registry contact details please see the Communicating with Registry Staff guide and Contact Us pages. 

Can I contact the judge who is dealing with my case, or the judge’s staff?

Some Judges do not allow direct contact with their chambers unless a party has a lawyer. You should ask the judge hearing your case how that Judge would like you to be in contact. If the Judge decides there will be no direct contact with chambers, you must communicate with the Judge’s chambers through the Registry.

Please refer the Court’s Guide to communications with Chambers.

How long from starting my case until trial and then a decision?

The Judge may give you a hearing date at the first case management conference if that is possible. That date may be several months away.

Otherwise, the Judge may wait until the case is prepared before giving it a hearing date.

After the trial has finished, the Court has a policy of trying to give a decision within three months. That is not always possible, but that is what the Court aims for.

Can I have hearings by telephone or videoconference?

It is up the Judge dealing with your case to permit a person to participate by videoconference or telephone. This is more likely for case management hearings than for trial.

Witnesses may be permitted to give evidence by video link, but only if the Court considers it appropriate after hearing what all the parties have to say about that issue.

The Federal Court’s Videoconferencing Guide sets out information about the Court's videoconferencing equipment and facilities, the charges for its use and how it can be booked for the assistance of those wishing to use video conferencing in proceedings before the Court.

What power does the Court have to award costs?

The Court has wide powers about costs. The orders the Court might make include:

  • Make a lump sum costs order.
  • Not order costs even if a party loses because, for example, the case was about a matter of public interest, or important legal principle. At the start of the proceeding, the Court can place limits on the costs ordered. These are sometimes called “cost capping orders”. Cost capping orders can be made at the start of a proceeding and limit (or ‘cap’) the maximum amount of costs that the successful party (whoever that is) can recover. If you want the Court to consider a costs capping order you should raise this with the Judge.
  • Make an order if you are unsuccessful pay the successful party’s costs (this is the most common costs order).
  • Make an order that the unsuccessful party pay some but not all of the successful party’s costs.

Can I get legal assistance?

List of organisations

A list of organisations is available on the Court’s website which may be able to help you with free or low cost legal advice or assistance.

Free legal assistance

The Court under Division 4.2 of the Federal Court Rules has power to decide that a self-represented litigant should be referred for legal assistance.

You are not entitled to a referral under Rule 4.12, it is the Judge’s decision whether to make a referral and this occurs only in appropriate cases. You may also ask the Judge to make such a referral.

If a referral is made, the Judge will decide what level of assistance the referral will cover. It could be:

  • only for legal advice
  • for legal representation by a barrister only or
  • for legal representation by a solicitor and a barrister.

It is possible that even where a referral is made no lawyer is willing to accept the referral.

There are circumstances in which lawyers who have accepted a referral under this Rule can ask to have the referral withdrawn. For example, if the client refuses to take their reasonable legal advice.

How can I get interpreting and translation services?

The Australian Government's Translating and Interpreting Service can supply telephone or on site interpreting. It is available 24 hours a day, 7 days a week, and is accessible from anywhere in Australia for the cost of a local call by telephoning 131 450.

Please note: It is your responsibility to arrange and pay for the cost of a translator to translate documents relied on by you in Court or sent to you by the Court or the respondent.

Forms, Rules & Fees

Filing fees for starting a matter in this NPA may apply. Information about Court fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Forms, Fees & Costs or from the Registry.

Parties should consider whether it is necessary to file a Genuine Steps Statements (Form 16) in certain proceedings in this NPA - see r 8.02 of the Rules and the Civil Dispute Resolution Act 2011 (Cth) (including ss 6, 7 and 16).

Administrative Law

1. Judicial Review Applications:

(a) Under the Judiciary Act

An application for judicial review under ss 39B(1) and (1A) the Judiciary Act:

A person who wants to make an application for relief under s 39B of the Judiciary Act must file the forms below.

The types of remedies that the Court can issue are orders compelling a respondent to do something or make a decision, orders preventing a respondent from doing something or making a decision, and orders setting aside a decision and requiring a person to make a new decision. The Court could also grant a Declaration (under s 39B(1A) of the Judiciary Act).

Forms:
  • Form 69 – Originating application for relief under s 39B of the Judiciary Act
Rules:

(b) Under the ADJR Act

A person may apply for a judicial review under s 11(1) of the ADJR Act by filing the following documents. The grounds of review available under the ADJR Act include:

  • a breach of the rules of natural justice or the right to procedural fairness
  • the procedures required by law for the making of the decision were not observed
  • the decision involved an error of law
  • the decision was affected by fraud
  • there was no evidence to make the decision
  • the decision was an improper exercise of power, including:
    • failing to take into account relevant considerations
    • taking into account irrelevant considerations
    • exercising the power unreasonably or in bad faith.
Forms:
  • Form 66 – Originating application for judicial review
Rules:
Notes:
  • An ADJR Act application must be filed within 28 days from notification of the decision or of the reasons for the decision (whichever is later). If an application is not made in time, a person may make an “Extension of Time” application (Form 67 , Rule 31.02). An extension application must:
    • be accompanied by an affidavit (Form 59) briefly stating the facts relied upon and the reason why the application was not filed in time and
    • a draft application (Form 66, Rule 31.01)
  • If the grounds of the application include an allegation of fraud or bad faith, the application must include details of the fraud or bad faith
  • Filing: at the time of filing an originating application or as soon as practicable thereafter, file the following documents (if they are in the applicant’s possession):
    • a statement of the terms of the decision that is the subject of the application or
    • a statement with respect to the decision:
      • given to the applicant under s 13 of the ADJR Act or s 28 of the AAT Act or
      • given by the person who made the decision and setting out findings of facts, or the evidence or other material that the reasons for making the decision were based
  • Service: Within 5 days after filing, a copy of each document must be served on each other party.

(c) Under the Migration Act

Under s 476A of the Migration Act, the Federal Court has jurisdiction in relation to a migration decision only if:

  • the Federal Circuit and Family Court transfers a pending proceeding in relation to the decision to the Federal Court
  • the decision is a privative clause decision or purported privative clause decision of the Administrative Appeals Tribunal under s 500 of the Migration Act
  • the decision is a privative clause decision or purported privative clause decision made personally by the Minister under ss 501, 501A, 501B or 501C of the Migration Act
  • the Federal Court has jurisdiction in relation to the decision under sub-ss 44(3) or 45(2) of the AAT Act.

A ‘migration decision’ under the Migration Act includes privative clause decisions, purported privative clause decisions and non-privative clause decisions (as defined in the Migration Act).  A decision includes the granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission, including a visa. It also includes a failure or refusal to make a decision.

The Federal Court and the Federal Circuit and Family Court cannot decide for itself whether or not a person should be granted a visa, or whether or not a person should have a visa cancelled, only whether it has been affected by ‘jurisdictional error’. A jurisdictional error includes the decision-maker:

  • identifying a wrong issue
  • asking a wrong question
  • ignoring relevant material
  • relying on irrelevant material or
  • an incorrect interpretation and/or application to the facts of the applicable law in a way that affects the exercise of power.

A person who wants to make an application for the review of a migration decision must file:

Forms:
  • Form 70 – Originating application for review of a migration decision

Rules:

Notes:
  • An application to the Federal Court or the Federal Circuit and Family Court to review a migration decision must be made within 35 days of the date of the migration decision
  • A person may apply to the Court to extend the time limit. The application for an extension of time (Form 67, Rule 31.23) must be accompanied by:
    • a draft originating application and
    • an affidavit (Form 59, Rule 29.02) stating the facts on which the application relies and why the application was not filed within time.

2. Appeals from Tribunals

To commence an appeal on a question of law, under one of the following provisions, a person must file:

Forms:
  • Form 75 - Notice of appeal from a tribunal

Rules:

Notes:
  • Appeals from the AAT:
    • A Notice of appeal must be filed no later than the 28th day after the day that a document setting out the terms of the decision is given to the person
    • Filing - the notice must be filed in the Registry in the State or Territory that the Tribunal heard the matter
    • Service – the applicant must serve a copy of the Notice of each other party to the matter and the Registrar of the Tribunal
    • Not all appeals from the AAT will be allocated to this NPA. The proceedings may be more appropriately allocated to another NPA (such as Taxation or Employment and Industrial Relations) because of the substantive issues in the proceeding

3. High Court remittals

Matters commenced in the High Court under s 75 of the Constitution may be remitted to this Court.
If the High Court has made an order remitting a proceeding to the Court, the applicant must file the order together with a Notice (see Form 71 below).

Forms:
  • Form 71 – Notice of proceeding remitted by the High Court of Australia

Rules:

Notes:
  • The order must be filed in the Registry specified in the order of remittal or if not specified - the Registry of the state or territory in which the proceeding in which the order for remittal was started
  • On receipt of an order of remittal, the Judicial Registrar will allot a serial number to the order, as if the order was an originating application filed in the Registry, and attach a notice (in accordance with Form 71) to the order
  • The applicant must serve a sealed copy of the High Court order with the Form 71 notice completed by the Judicial Registrar, on each party to the proceeding in the High Court.

4. Referral of petition under the Electoral Act

If the High Court has made an order referring a petition or part of a petition under either s 354(1) or 354(3) of the Commonwealth Electoral Act to the Court, then the applicant must file:

Forms:
  • Form 72 - Notice of election petition

Rules:

Notes:
  • On receipt of an order referring a petition, the Judicial Registrar will allot a serial number to the order as if the order was an application filed in the Registry, and attach a notice (in accordance with Form 72) to the order
  • Before taking any step in the proceeding, a party must file a notice of address for service (unless it has already done so in the High Court)
  • Service: The applicant must serve a sealed copy of the order of the High Court, that has attached to it a notice completed by the Judicial Registrar, to each party to the proceeding.

5. Other administrative law applications

A person may, in certain circumstances, also apply for a judicial review under other legislation including the Extradition Act 1988 (Cth) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by filing:

Forms:

Rules:

Constitutional Law matters

Where a proceeding involves a matter arising under the Constitution or involving its interpretation and a notice under s 78B of the Judiciary Act is required, a person must file:

Forms:
  • Form 18 - Notice of a constitutional matter under s78B of the Judiciary Act

Rules:

Notes:
  • Not all proceedings in which s 78B Notices have been issued will be allocated to this NPA. The proceeding may be more appropriately allocated to another NPA (such as taxation, or intellectual property) because of the substantive issues in the proceeding.

Human Rights matters

Before you can commence a human rights claim about unlawful discrimination in the Federal Court, you must first make a complaint to the Australian Human Rights Commission and the complaint must have been terminated. You can contact the Human Rights Commission on 1300 656 419.

The Australian Human Rights Commission terminates a complaint by giving a termination notice to each of the people involved in the complaint. You need a copy of the termination notice to complain to the Federal Court.

There are time limits for making complaints to the Federal Court. The normal rule is that a complaint to the Federal Court must be made within 60 days after the issue of the notice of termination.

A person who wants to start a proceeding for unlawful discrimination under the Human Rights Act must file:

Forms:
  • Form 116 - Originating application under the Australian Human Rights Commission Act 1986
  • Form 59 - Affidavit
  • Form 17 - Statement of claim

Rules:

Notes:
  • Application must be accompanied by:
    • a copy of the original complaint to the Commission and
    • a notice of termination of the complaint by the President of the Commission
  • The application must include any other claim the person has in additional to the claim for unlawful discrimination
  • The applicant must give the Commission a stamped copy of the application and the accompanying documents at least 5 days before the hearing.
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Important note: This information is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law.

NPA Judges

National Coordinating Judges

  • Collier J
  • Perry J
  • Moshinsky J
  • Charlesworth J
  • Jackson J
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