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 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:
- Law Council of Australia: Case Management Handbook
- Victorian Law Foundation: Law Help Guide 2016
- 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 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 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)
- 14 May 2021:
BWI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 518
MIGRATION - alleged failure of Administrative Appeals Tribunal to consider a clearly articulated argument - appellant's promise not to re-offend - appellant's promise and risk of re-offending not a mandatory relevant consideration - appeal dismissed
Judge: Jagot J
- 14 May 2021:
DLB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 504
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review - where Immigration Assessment Authority (Authority) affirmed a decision of a delegate of the Minister to refuse a safe haven enterprise visa - whether Authority misunderstood "real chance" test - whether…
Judge: Markovic J
- 14 May 2021:
Hunt v Minister for Home Affairs  FCA 507
MIGRATION - judicial review of the Minister's decision to cancel applicant's visa on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) - where applicant was convicted of a range of criminal offences, including one of manslaughter - where applicant was a citizen of New Zealand - whether the respondent failed to engage in a…
Judge: Collier J
- 14 May 2021:
EAI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 506
MIGRATION -- appeal -- application for judicial review of decision of Immigration Assessment Authority to affirm decision of Minister's delegate to refuse to grant appellant a Safe Haven Enterprise Visa -- whether primary judge erred by finding Authority did not fail to comply with s 473DE of the Migration Act 1958 (Cth) -- whether statement made…
Judge: Katzmann J
- 13 May 2021:
Weller v Anderson  FCA 503
HUMAN RIGHTS - sexual harassment and discrimination - competing allegations and denials of conduct - whether the applicant has discharged the onus of proof
Judge: McKerracher J
- 13 May 2021:
Hastwell v Kott Gunning  FCAFC 70
HUMAN RIGHTS - claim of sexual discrimination and disability discrimination by employer - where applicant claims loss and damage caused by exacerbation of anxiety and depression - where applicant refuses to undergo a psychiatric examination to allow the respondent to adduce expert evidence - where primary judge ordered a permanent stay of…
Judge: McKerracher, Kerr and Charlesworth JJ
- 11 May 2021:
BCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 493
MIGRATION - appeal from Federal Circuit Court - no jurisdictional error by Tribunal - appeal dismissed
Judge: Beach J
- 11 May 2021:
Dunn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 488
MIGRATION - application for judicial review of decision of Minister - where Minister refused applicant's request for revocation of mandatory cancellation of visa - whether Minister failed to undertake statutory task by failing to engage in active intellectual process with representations advanced by applicant in support of revocation - where…
Judge: Colvin J
- 11 May 2021:
CFK16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 470
MIGRATION - second respondent affirmed decision of delegate of the first respondent to refuse to grant certain visas to the appellants - primary judge dismissed appellants' application for judicial review - first appellant made a religious apathy claim in an invalid application for a protection visa - religious apathy claim not repeated in…
Judge: Anderson J
- 11 May 2021:
BDF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 489
MIGRATION - procedural fairness - where the Secretary provided documents to the Administrative Appeals Tribunal - where the Minister by his delegate made a certificate pursuant to s 438 of the Migration Act 1958 (Cth) in respect of such documents - where the Tribunal did not disclose the existence of the certificate to the appellant and found that …
Judge: Nicholas J
Latest Speeches & Papers
- 4 Sep 2019:
Of shields and swords - let the jousting begin!
Presented at Freedom19 Conference, Sydney, by Justice Sarah Derrington.
- 15 Feb 2019:
The federal and state courts on constitutional law: The 2018 term
Presented to the Gilbert + Tobin Centre of Public Law, 2019 Constitutional Law Conference, by Justice Moshinsky.
- 29 Nov 2017:
Rationality and reason in administrative law - Would a roll of the dice be just as good?
Presented at the Australian Academy of Law WA Chapter lecture, Perth, by The Hon R French AC.
- 27 Nov 2017:
Judicial review of public and private employment contracts
Presented at the Third National Underlying Law Conference, Papua New Guinea, by Justice Collier
- 27 Nov 2017:
Executive intervention in judicial functions and judicial encroachment into executive functions - Defining the boundaries
Delivered at the National Conference on Development of the Underlying Law on Administrative Law, Port Moresby, by Justice Logan.
- 20 Oct 2017:
Social media - Challenges for lawyers and the courts
Paper presented at the Australian Young Lawyers' Conference in Sydney, by Justice Rares.
- 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.