Administrative and Constitutional Law and Human Rights National Practice Area (NPA)

About this NPA

Practice Notes

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:

Victoria Legal Aid: Find legal answers
Queensland Public Interest Law Clearing House: Going to a court or tribunal
NSW Law Access: Law Access
The Legal Aid Commission of Tasmania: Fact Sheets
Canberra Community Legal Centre
Darwin Community Legal Centre – Legal and Advocacy Services
Legal Services Commission of South Australia: Law Handbook
Western Australia Legal Aid: Information about the law

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:	Federal Court Rules 31.11(1)

(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:	Federal Court Rules 31.01
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:

Federal Court Rules 31.22(1)

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:

s 44 of the AAT Act
s 46 of the Superannuation (Resolution of Complaints) Act
s 169 of the Native Title Act.

Forms:

Form 75 - Notice of appeal from a tribunal

Rules:

Federal Court Rules 33.12(1), 33.34 and 33.40

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

Appeals from the Superannuation Complaints Tribunal & the NNTT:

Must be filed in the Registry in the state or territory that the applicant ordinarily resides.

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:	Federal Court Rules 32.01 and 32.02(1)
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:	Division 32.2 – Federal Court Rules 32.11 and 32.12(1)(b)
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:	Form 15 - Originating application Form 17 - Statement of Claim Concise Statement (refer to the Commercial and Corporations Practice Note)
Rules:	Federal Court Rules 8.01(1), 8.04(1) and 8.05(1)(a).

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:	Federal Court Rules - 8.11(2)
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:	Federal Court Rules - 34.163(1), 29.02(1) and 8.05(1)(a).
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.

All Forms

Commonly Used Legislation

Latest Judgments

7 Dec 2023: Save the Children Australia v Minister for Home Affairs (No 2) [2023] FCA 1542
COSTS - where applicant sought a writ of habeas corpus on behalf of women and children being detained overseas - where applicant was unsuccessful - where applicant sought an order that each party bear its or their own costs - whether proper basis to depart from usual position that costs follow the event - held: order made that each party bear its…
Judge: Moshinsky J
7 Dec 2023: Sayed v National Disability Insurance Agency [2023] FCA 1550
PRACTICE AND PROCEDURE - application for leave to appeal from primary judge decision refusing access to audio recording of a case management hearing - where application made in connection with application for primary judge to recuse on the grounds of actual bias and apprehended bias - where recusal application dismissed and leave to appeal that…
Judge: Anderson J
7 Dec 2023: GKYW v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1543
MIGRATION - character case - where applicant's visa was subject to mandatory cancellation - where a delegate decided not to revoke the cancellation decision - where the Tribunal affirmed the decision of the delegate - where the applicant contended that the Tribunal fell into jurisdictional error by taking into account findings of guilt in relation …
Judge: Moshinsky J
7 Dec 2023: BUO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1548
MIGRATION - appeal from decision of primary judge affirming decision of the Administrative Appeals Tribunal (Tribunal) to refuse the applicant a protection visa - where the Tribunal rejected the applicant's claims to apprehend violence from a former husband - whether the Tribunal's reasoning was illogical or irrational because it failed to…
Judge: Anderson J
7 Dec 2023: Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1547
MIGRATION - appeal from decision of primary judge affirming decision of Administrative Appeals Tribunal (Tribunal) not to grant Partner (Temporary) (Class UK) visa - whether Tribunal failed to comply with obligations under ss 359AA and 359A of the Migration Act 1958 (Cth) - whether Tribunal breached s 360 of the Migration Act 1958 (Cth) - whether…
Judge: Anderson J
6 Dec 2023: Thompson v Hird [2023] FCA 1530
ADMINISTRATIVE LAW - application for judicial review of a Registrar's decision to refuse to accept documents for filing - no error of law shown - relief sought would have been refused in any event as proposed application was an abuse of process - application dismissed
Judge: Downes J
6 Dec 2023: Tax Practitioners Board v Van Stroe (No 2) [2023] FCA 1533
TAXATION - application for civil penalties to be imposed for multiple breaches of s 50-51 of the Tax Agent Services Act 2009 (Cth) - respondent on notice of requirements of legislation and prospect of proceedings against her prior to relevant contraventions - no explanation or cooperation - need for specific and general deterrence - application of …
Judge: Banks-smith J
6 Dec 2023: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1528
MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal - where delegate of the Minister refused visa on character grounds - where the applicable Ministerial Direction under s 499 of the Migration Act 1958 (Cth) at the time of the application for review was Direction 65 - where the Minister subsequently made…
Judge: Moshinsky J
6 Dec 2023: Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission (No 2) [2023] FCA 1538
PRACTICE AND PROCEDURE - application by respondent for non-publication and suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) -where information is or may be "protected Commission information" within the meaning of the National Disability Insurance Scheme Act 2013 (Cth) - whether orders necessary to prevent…
Judge: Shariff J
5 Dec 2023: Corbisieri v NM Superannuation Proprietary Limited (No 2) [2023] FCA 1531
COSTS - whether indemnity costs should be ordered following rejection of Calderbank offer - whether Australian Financial Complaints Authority's erroneous decision should result in an adverse costs order - circumstances do not warrant departure from ordinary position
Judge: O'Callaghan J

Search All Judgments

General practice notes:	Consent Orders involving a Federal Tribunal (GPN-TRIB) Expert Evidence (GPN-EXPT) Subpoenas and Notices to Produce (GPN-SUBP) List of Authorities and Citations (GPN-AUTH) Access to Documents and Transcript (GPN-ACCS) Costs (GPN-COSTS)
Guides:	Guide to Administrative and Constitutional Law Matters Guide to Human Rights Matters Guide to Migration Matters Communicating with Chambers Staff Communicating with Registry Guide

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About this NPA

Administrative Law

Constitutional Law

Human Rights

Practice Notes

Information to Assist Litigants

Where can I find information to help me?

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

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

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

Can I have hearings by telephone or videoconference?

What power does the Court have to award costs?

Can I get legal assistance?

List of organisations

Free legal assistance

How can I get interpreting and translation services?

Forms, Rules & Fees

Administrative Law

1. Judicial Review Applications:

(a) Under the Judiciary Act

(b) Under the ADJR Act

(c) Under the Migration Act

2. Appeals from Tribunals

3. High Court remittals

4. Referral of petition under the Electoral Act

5. Other administrative law applications

Constitutional Law matters

Human Rights matters

Commonly Used Legislation

Administrative & Constitutional Law

Human Rights

Latest Judgments

Latest Speeches & Papers

Seminars

Related Links

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