About this NPA
The Administrative and Constitutional Law and Human Rights (ACLHR) National Practice Area (NPA) includes the following matters:
- Judicial review applications pursuant to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act); Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and ss 476A and 476B(3) of the Migration Act 1958 (Cth) (Migration Act)
- Appeals on questions of law from the Administrative Appeals Tribunal (AAT), the Superannuation Complaints Tribunal and the National Native Title Tribunal (NNTT)
- Matters remitted from the High Court under s 75 of the Constitution
- Referral of petitions under the Commonwealth Electoral Act 1918 (Electoral Act).
- Matters arising under the Constitution or involving its interpretation.
- Unlawful discrimination proceedings under the Australian Human Rights Commission Act 1986 (Human Rights Act).
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.
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.
Central Practice Note (CPN-1)
The NPA practice note sets out the arrangements for the management of Administrative and Constitutional Law and Human Rights proceedings:
Other practice notes and Court developed guides which may be relevant to this NPA include:
General 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.
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).
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).
(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.
(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:
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.
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).
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:
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:
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:
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:
Commonly Used Legislation
Administrative & Constitutional Law
- Judiciary Act 1903 (Cth)
- Administrative Decisions (Judicial Review) Act 1977 (Cth)
- Administrative Appeals Tribunal Act 1975 (Cth)
- Migration Act 1958 (Cth)
- Native Title Act 1993 (Cth)
- Superannuation (Resolution of Complaints) Act 1993 (Cth)
- Commonwealth of Australia Constitution Act
- Commonwealth Electoral Act 1918 (Cth)
- Extradition Act 1988 (Cth)
- Environment Protection and Biodiversity Conservation Act 1999 (Cth)
- Freedom of Information Act 1982 (Cth)
- Privacy Act 1988 (Cth)
- Ombudsman Act 1976 (Cth)
- Age Discrimination Act 2004 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Sex Discrimination Act 1999 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Australian Human Rights Commission Act 1986 (Cth)
- 7 Dec 2023:
Save the Children Australia v Minister for Home Affairs (No 2)  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  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  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  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  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  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)  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  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)  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)  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
Latest Speeches & Papers
- 8 Mar 2023:
Judicial accountability – new developments and threats
Paper delivered at the Commonwealth Lawyers’ Conference by Justice Logan.
- 28 Oct 2022:
"March in the guilty bastard"? - Administrative action and military discipline
Paper delivered to the Advanced Military Administrative Law Course, University of Adelaide.
- 8 Oct 2022:
Australian Courts and the Extraterritorial Operation of Laws – Consumer and Competition Laws
A paper presented to the Australian Judicial Officers Association 2022 Colloquium
- 20 Jul 2022:
There runs the quick perspective of the future: Where to from here?
Robert French AC Oration delivered on 20 July 2022: There runs the quick perspective of the future: Where to from here?
- 21 Oct 2021:
AI and Automated Decision-Making: Are you just another number?
Presented to the Gilbert & Tobin Centre of Public Law, UNSW Law & Justice and the NSW Chapter, Australian Institute of Administrative Law event 'Kerr’s Vision Splendid for Administrative Law: Still Fit for Purpose? – Online Symposium on the 50th
- 24 Aug 2021:
Reviewing judicial power for jurisdictional error: Some recent migration cases
Address to the WA Chapter of the Australian Institute of Administrative Law by Justice Colvin.
- 29 Nov 2017: Australian Academy of Law Annual Lecture WA Chapter Lecture Rationality and reason in administrative law - Would a roll of the dice be just as good?
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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.