Part 1—Preliminary
1 Name
This is the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015.
3 Authority
This instrument is made under section 133 of the Federal Circuit and Family Court of Australia Act 2021.
4 Definitions
In this instrument:
Act means the Federal Circuit and Family Court of Australia Act 2021.
ACT Residential Tenancies Act means the Residential Tenancies Act 1997 (ACT), as in force in the Jervis Bay Territory under section 4A of the Jervis Bay Territory Acceptance Act 1915.
applicable Jervis Bay Territory law:
(a) in relation to a dispute covered by Subdivision A of Division 2 of Part 3—has the meaning given by subsection 13(4); and
(b) in relation to a dispute covered by Subdivision B of Division 2 of Part 3—has the meaning given by subsection 18(4).
applicable NSW law has the meaning given by subsection 7(2).
relevant Registrar, in relation to the Federal Circuit and Family Court of Australia (Division 2), means the following:
(a) the Chief Executive Officer and Principal Registrar (within the meaning of the Act);
(b) a Senior Registrar or Registrar of that court.
Part 2—Conferral of jurisdiction
4A Commonwealth tenancy disputes involving non‑self‑governing territories
The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine a Commonwealth tenancy dispute involving land in a non‑self‑governing Territory between the parties to a lease, licence or other arrangement in which:
(a) the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is:
(i) the lessor (other than as a sublessor); or
(ii) the licensor (other than as a sublicensor); or
(iii) the grantor of a right or permission to possess, occupy or use land owned by the Commonwealth; and
(b) a Commonwealth officer or employee (other than a member of the Defence Force) is:
(i) the lessee (other than a sublessee); or
(ii) the licensee (other than a sublicensee); or
(iii) the grantee of the right or permission.
Part 3—Provisions relating to Commonwealth tenancy disputes
Division 1—Commonwealth tenancy disputes involving land in New South Wales
5 Operation of this Division
(1) This Division makes provision in relation to the following matters in respect of a Commonwealth tenancy dispute involving land in New South Wales:
(a) the rights of the parties to the dispute;
(b) the law to be applied in determining the dispute;
(c) the powers that the Federal Circuit and Family Court of Australia (Division 2) may exercise under that law;
(d) the powers that may be exercised when executing an order made by the Court.
(2) This Division does not apply in relation to a Commonwealth tenancy dispute involving land in New South Wales unless the dispute involves a tenancy within the meaning of the Residential Tenancies Act 2010 (NSW).
(3) Nothing in this Division has effect so as to confer non‑judicial power on the Federal Circuit and Family Court of Australia (Division 2), unless the non‑judicial power is incidental to the exercise of judicial power by the Court.
6 Rights of the parties
(1) This section applies to a party to a Commonwealth tenancy dispute involving land in New South Wales if:
(a) the party is a tenant within the meaning of the Residential Tenancies Act 2010 (NSW); and
(b) the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine the dispute.
(2) The party must not make an application to the Civil and Administrative Tribunal under the Residential Tenancies Act 2010 (NSW) in relation to a lease, licence or other arrangement to possess, occupy or use land that is the subject of the dispute.
7 Law to be applied
(1) In determining a Commonwealth tenancy dispute involving land in New South Wales, the Residential Tenancies Act 2010 (NSW) and any regulations made under that Act are to be applied:
(a) to the extent necessary to determine the dispute; and
(b) subject to the modifications set out in section 8 of this instrument.
(2) The law mentioned in subsection (1) is the applicable NSW law.
8 Modifications of applicable NSW law
(1) The applicable NSW law is to be applied as if:
(a) a reference to the Tribunal were a reference to the Federal Circuit and Family Court of Australia (Division 2); and
(b) a reference to the principal registrar of the Tribunal were a reference to a relevant Registrar of the Federal Circuit and Family Court of Australia (Division 2); and
(c) a reference to the Sheriff, or to a sheriff’s officer, were a reference to the Sheriff of the Federal Circuit and Family Court of Australia (Division 2).
(2) The Residential Tenancies Act 2010 (NSW) is to be applied as if it included the following section:
Despite anything else in this Act, if the Federal Circuit and Family Court of Australia (Division 2) makes a termination order in respect of residential premises, the Court may make such orders as it considers appropriate in relation to the day vacant possession of the premises is to be given to the landlord.
9 Powers of the Court
In determining a Commonwealth tenancy dispute involving land in New South Wales, the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers that are:
(a) powers of the Civil and Administrative Tribunal under the applicable NSW law; and
(b) relevant to determining the dispute.
10 Powers when executing orders made by the Court
(1) If the Federal Circuit and Family Court of Australia (Division 2) makes an order when exercising jurisdiction over a Commonwealth tenancy dispute involving land in New South Wales:
(a) the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers of the Civil and Administrative Tribunal under the applicable NSW law; and
(b) a relevant Registrar of the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers of the principal registrar of the Civil and Administrative Tribunal under the applicable NSW law; and
(c) subject to subsection (2), the Sheriff or a Deputy Sheriff of the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers of a sheriff’s officer under section 7A of the Sheriff Act 2005 (NSW);
to the extent that those powers are relevant to the execution or enforcement of the order.
(2) In exercising a power of a sheriff’s officer under section 7A of the Sheriff Act 2005 (NSW) to execute a warrant for possession of residential premises, the Sheriff or a Deputy Sheriff of the Federal Circuit and Family Court of Australia (Division 2):
(a) may obtain the assistance of a member or special member of the Australian Federal Police; and
(b) must not enter a dwelling house between 9 pm one day and 6 am the next day unless the Sheriff or Deputy Sheriff reasonably believes that it would not be practicable to execute the warrant at another time; and
(c) must not use more force, or subject any person on the premises to greater indignity, than is necessary and reasonable to execute the warrant; and
(d) must not do anything that is likely to cause the death of, or grievous bodily harm to, any person on the premises unless the Sheriff or Deputy Sheriff reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person (including the Sheriff or Deputy Sheriff).
(3) To avoid doubt, nothing in this section limits any other power of:
(a) the Federal Circuit and Family Court of Australia (Division 2); or
(b) a relevant Registrar of the Federal Circuit and Family Court of Australia (Division 2); or
(c) the Sheriff or a Deputy Sheriff of the Federal Circuit and Family Court of Australia (Division 2).
Division 2—Commonwealth tenancy disputes involving land in the Jervis Bay Territory
Subdivision A—Disputes involving tenancy arrangements to which the ACT Residential Tenancies Act applies
11 Operation of this Subdivision
(1) This Subdivision makes provision in relation to the following matters in respect of a Commonwealth tenancy dispute involving land in the Jervis Bay Territory:
(a) the rights of the parties to the dispute;
(b) the law to be applied in determining the dispute;
(c) the powers that the Federal Circuit and Family Court of Australia (Division 2) may exercise under that law;
(d) the powers that may be exercised when executing an order made by the Court.
(2) This Subdivision does not apply in relation to a Commonwealth tenancy dispute involving land in the Jervis Bay Territory unless:
(a) the dispute involves a residential tenancy agreement within the meaning of the ACT Residential Tenancies Act; and
(b) disregarding the effect of this instrument, the ACT Residential Tenancies Act applies to the residential tenancy agreement.
(3) Nothing in this Subdivision has effect so as to confer non‑judicial power on the Federal Circuit and Family Court of Australia (Division 2), unless the non‑judicial power is incidental to the exercise of judicial power by the Court.
12 Rights of the parties
(1) This section applies to a party to a Commonwealth tenancy dispute involving land in the Jervis Bay Territory if:
(a) the party is a tenant within the meaning of the ACT Residential Tenancies Act; and
(b) the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine the dispute.
(2) The party must not make an application to the ACT Civil and Administrative Tribunal under the ACT Residential Tenancies Act in relation to a lease, licence or other arrangement to possess, occupy or use land that is the subject of the dispute.
13 Law to be applied
(1) This section applies when determining a Commonwealth tenancy dispute involving:
(a) land in the Jervis Bay Territory; and
(b) any of the following:
(i) the recovery of rent or other payments payable under or in relation to a lease, licence or other arrangement;
(ii) the termination, or proposed termination, of a lease, licence or other arrangement;
(iii) the possession, occupation or use of the land.
(2) To the extent that the Commonwealth tenancy dispute covers the matter mentioned in subparagraph (1)(b)(i), the following provisions:
(a) section 83 of the ACT Residential Tenancies Act;
(b) any other provision of that Act or regulations made under that Act, to the extent that it relates to section 83 of that Act;
are to be applied:
(c) to the extent necessary to determine the dispute; and
(d) subject to the modifications set out in section 14 of this instrument.
(3) To the extent that the Commonwealth tenancy dispute covers a matter mentioned in subparagraph (1)(b)(ii) or (iii), the following provisions:
(a) Part 4 of the ACT Residential Tenancies Act;
(b) section 83 of that Act;
(c) clauses 92 and 93 of Schedule 1 to that Act;
(d) any other provision of that Act or regulations made under that Act, to the extent that they relate to Part 4 or section 83 of that Act, or clause 92 or 93 of Schedule 1 to that Act;
are to be applied:
(e) to the extent necessary to determine the dispute; and
(f) subject to the modifications set out in section 14 of this instrument.
(4) The provisions mentioned in subsections (2) and (3) are the applicable Jervis Bay Territory law.
14 Modifications of applicable Jervis Bay Territory law
(1) The applicable Jervis Bay Territory law is to be applied as if:
(a) a reference to the ACAT or the tribunal were a reference to the Federal Circuit and Family Court of Australia (Division 2); and
(b) a reference to the registrar were a reference to a relevant Registrar of the Federal Circuit and Family Court of Australia (Division 2).
(2) The ACT Residential Tenancies Act is to be applied as if sections 76, 77, 78 and 86 were excluded.
15 Powers of the Court
In determining a Commonwealth tenancy dispute involving land in the Jervis Bay Territory, the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers that are:
(a) powers of the ACT Civil and Administrative Tribunal under the applicable Jervis Bay Territory law; and
(b) relevant to determining the dispute.
15A Powers when executing orders made by the Court
If the Federal Circuit and Family Court of Australia (Division 2) makes an order when exercising jurisdiction over a Commonwealth tenancy dispute involving land in the Jervis Bay Territory:
(a) the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers of the ACT Civil and Administrative Tribunal under the applicable Jervis Bay Territory law; and
(b) a relevant Registrar of the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers of a registrar of the ACT Civil and Administrative Tribunal;
to the extent that those powers are relevant to the execution or enforcement of the order.
Subdivision B—Disputes involving tenancy arrangements to which the ACT Residential Tenancies Act does not apply
16 Operation of this Subdivision
(1) This Subdivision makes provision in relation to the following matters in respect of a Commonwealth tenancy dispute involving land in the Jervis Bay Territory:
(a) the rights of the parties to the dispute;
(b) the law to be applied in determining the dispute;
(c) the powers that the Federal Circuit and Family Court of Australia (Division 2) may exercise under that law;
(d) the powers that may be exercised when executing an order made by the Court.
(2) This Subdivision does not apply in relation to a Commonwealth tenancy dispute involving land in the Jervis Bay Territory unless:
(a) disregarding the effect of this instrument, the ACT Residential Tenancies Act does not apply in relation to the relevant lease, licence or other arrangement; but
(b) if that Act did apply, the lease, licence or other arrangement would involve a residential tenancy agreement within the meaning of that Act.
(3) Nothing in this Subdivision has effect so as to confer non‑judicial power on the Federal Circuit and Family Court of Australia (Division 2), unless the non‑judicial power is incidental to the exercise of judicial power by the Court.
17 Rights of the parties
(1) This section applies to a party to a Commonwealth tenancy dispute involving land in the Jervis Bay Territory if:
(a) the party is a tenant within the meaning of the ACT Residential Tenancies Act; and
(b) the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine the dispute.
(2) The party must not make an application to the ACT Civil and Administrative Tribunal under the ACT Residential Tenancies Act in relation to a lease, licence or other arrangement to possess, occupy or use land that is the subject of the dispute.
18 Law to be applied
(1) This section applies when determining a Commonwealth tenancy dispute involving:
(a) land in the Jervis Bay Territory; and
(b) any of the following:
(i) the recovery of rent or other payments payable under or in relation to a lease, licence or other arrangement;
(ii) the termination, or proposed termination, of a lease, licence or other arrangement;
(iii) the possession, occupation or use of the land.
(2) To the extent that the Commonwealth tenancy dispute covers the matter mentioned in subparagraph (1)(b)(i), the following provisions:
(a) section 83 of the ACT Residential Tenancies Act;
(b) any other provision of that Act or regulations made under that Act, to the extent that it relates to section 83 of that Act;
are to be applied:
(c) to the extent necessary to determine the dispute; and
(d) subject to the modifications set out in section 19 of this instrument.
(3) To the extent that the Commonwealth tenancy dispute covers a matter mentioned in subparagraph (1)(b)(ii) or (iii), the following provisions:
(a) Part 4 of the ACT Residential Tenancies Act;
(b) section 83 of that Act;
(c) any other provision of that Act or regulations made under that Act, to the extent that they relate to Part 4 or section 83 of that Act;
are to be applied:
(d) to the extent necessary to determine the dispute; and
(e) subject to the modifications set out in section 19 of this instrument.
(4) The provisions mentioned in subsections (2) and (3) are the applicable Jervis Bay Territory law.
19 Modifications of applicable Jervis Bay Territory law
(1) The applicable Jervis Bay Territory law is to be applied as if:
(a) a reference to the ACAT or the tribunal were a reference to the Federal Circuit and Family Court of Australia (Division 2); and
(b) a reference to the registrar were a reference to a relevant Registrar of the Federal Circuit and Family Court of Australia (Division 2); and
(c) a reference to a residential tenancy agreement were a reference to a lease, licence or other arrangement; and
(d) a reference to standard residential tenancy terms were a reference to terms and conditions of the lease, licence or other arrangement; and
(e) a reference to a tenancy dispute were a reference to a Commonwealth tenancy dispute; and
(f) the reference to the Territory in paragraph 83(c) were omitted; and
(g) a reference to “under the Residential Tenancies Act 1997, schedule 1” in subparagraph 5(a)(iii) of the Residential Tenancies Regulation 1998 (ACT) were a reference to “under the lease, licence or other arrangement”.
(2) The ACT Residential Tenancies Act is to be applied as if the following provisions of that Act were excluded:
(a) Part 2;
(b) paragraph 43(1)(b);
(c) subparagraph 48(1)(a)(iv);
(d) paragraph 54(1)(b);
(e) sections 72, 76, 77 and 78;
(f) paragraphs 82(a) and 83(e);
(g) section 86.
20 Powers of the Court
In determining a Commonwealth tenancy dispute involving land in the Jervis Bay Territory, the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers that are:
(a) powers of the ACT Civil and Administrative Tribunal under the applicable Jervis Bay Territory law; and
(b) relevant to determining the dispute.
21 Powers when executing orders made by the Court
If the Federal Circuit and Family Court of Australia (Division 2) makes an order when exercising jurisdiction over a Commonwealth tenancy dispute involving land in the Jervis Bay Territory:
(a) the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers of the ACT Civil and Administrative Tribunal under the applicable Jervis Bay Territory law; and
(b) a relevant Registrar of the Federal Circuit and Family Court of Australia (Division 2) may exercise any powers of a registrar of the ACT Civil and Administrative Tribunal;
to the extent that those powers are relevant to the execution or enforcement of the order.
Part 4—Transitional and application provisions
Division 1—Application of the Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2017
50 Application of amendments
The amendments made by the Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2017 apply in relation to Commonwealth tenancy disputes arising before or after the commencement of that instrument
Division 2—Application of the Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2021
51 Application of amendments
The amendments made by the Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2021 apply in relation to Commonwealth tenancy disputes arising before or after the commencement of that instrument.