Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2026

Commonwealth tenancy dispute. This is the central concept that triggers the Instrument’s operation. Section 6 defines it as a dispute involving land in an external territory or the Jervis Bay Territory between parties to a lease, licence or other arrangement in which the Commonwealth (or a person suing or being sued on its behalf) is the lessor, licensor or grantor of a right to possess, occupy or use land owned by the Commonwealth, and a Commonwealth officer or employee (excluding Defence Force members) is the lessee, licensee or grantee. The dispute need not be limited to termination or possession; it covers any dispute arising from the tenancy arrangement. The Instrument does not define “external territory” further, but it would include territories such as Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The Jervis Bay Territory is separately covered by its own provisions.

Relevant Registrar. Section 5 defines a relevant Registrar as the Chief Executive Officer of the Federal Circuit and Family Court of Australia, or a Senior Registrar or Registrar of Division 2. These officers may exercise certain powers under the NSW or Jervis Bay Territory tenancies law, such as those of the principal registrar of NCAT or the registrar of ACAT, when orders of the court need to be executed.

NSW tenancies law. This is defined in section 5 as the Residential Tenancies Act 2010 (NSW) and any instruments made under that Act, as in force from time to time. This is a dynamic reference: future amendments to the NSW Act automatically become part of the law applied by the court for NSW disputes. Similarly, Jervis Bay Territory tenancies law is defined as the Residential Tenancies Act 1997 (ACT) and any instruments made under that Act as they apply in the Jervis Bay Territory under section 4A of the Jervis Bay Territory Acceptance Act 1915. Again, amendments to the ACT Act that are extended to the Jervis Bay Territory will apply in federal court proceedings.

Modifications. For each category of dispute, the Instrument sets out specific textual changes to the state or territory law. For NSW disputes, section 9 replaces references to the Tribunal with the Federal Circuit and Family Court of Australia (Division 2), references to the principal registrar with a relevant Registrar, and references to the Sheriff or sheriff’s officer with the Sheriff of the federal court. It also adds a new provision giving the court power to fix the date for vacant possession. For Jervis Bay Territory disputes, the changes are more extensive. For non-Leases Ordinance disputes (Subdivision A), section 14 omits sections 76, 77, 78 and 86 of the ACT Act and deletes the reference to the Territory in paragraph 83(1)(c). For Leases Ordinance disputes (Subdivision B), section 19 omits an additional list of provisions: Part 2 (which deals with the making of residential tenancy agreements and standard terms), paragraph 43(1)(b), subparagraph 48(1)(a)(iv), paragraph 54(1)(b), paragraphs 82(a) and 83(1)(e), and sections 76, 77, 78 and 86. It also substitutes references to standard residential tenancy terms with references to the terms and conditions of the lease. These omissions remove parts of the ACT Act that may relate to ACAT’s procedures, certain preconditions for termination, and restrictions on the use of force, among other things.

Tenant’s right to apply to tribunal is removed. In each Division, the Instrument provides that a party who is a tenant within the meaning of the relevant Act must not make an application to the state or territory tribunal (NCAT or ACAT) in relation to the arrangement that is the subject of the dispute. This is not merely a procedural bar; it is a prohibition. If a tenant does apply, the application would be invalid or the tribunal would lack jurisdiction.

Non-judicial power limitation. Sections 7(2), 12(2) and 17(2) each state that nothing in the relevant Division has effect so as to confer non-judicial power on the court unless the power is incidental to the exercise of judicial power. This preserves the constitutional separation of powers. The court must not exercise purely administrative or policy-making functions under the guise of tenancy jurisdiction.

The Instrument directly affects three categories of parties: (1) Commonwealth officers and employees (excluding members of the Australian Defence Force) who enter into lease, licence or other arrangements with the Commonwealth to occupy land in an external territory or the Jervis Bay Territory; (2) the Commonwealth itself, as the lessor, licensor or grantor of the right to occupy land; and (3) the Federal Circuit and Family Court of Australia (Division 2), which acquires jurisdiction over these disputes.

For the Commonwealth employee tenant, the most immediate effect is the loss of access to the state or territory tribunal that would otherwise have jurisdiction. A tenant in NSW who rents Commonwealth housing on Norfolk Island, for example, cannot apply to NCAT; a tenant in the Jervis Bay Territory cannot apply to ACAT. Instead, any dispute must be litigated in the federal court. This forum shift may have practical consequences. Tribunals such as NCAT and ACAT are designed to be relatively informal, cheap and quick; they often allow self-representation and have limited cost exposure. The Federal Circuit and Family Court of Australia (Division 2) is a court of record. It follows more formal procedures, may require legal representation, and can award costs. For a tenant who cannot afford a lawyer, this could be a significant barrier to enforcing rights.

For the Commonwealth as lessor, the Instrument centralises dispute resolution in a single federal forum. This may simplify case management for the Commonwealth’s legal team, especially if it has many tenancy arrangements across multiple territories. However, the Commonwealth may also face higher costs if the court’s procedures are more rigorous than those of a tribunal. The Instrument does not give the Commonwealth a choice of forum; the jurisdiction is exclusive once the conditions in section 6 are satisfied.

For the court itself, the Instrument creates a specialised workload. Judges and registrars will need to become familiar with the NSW and ACT residential tenancy laws as modified. The court’s Sheriff may be asked to execute warrants for possession, and may call on the Australian Federal Police for assistance. This is a notable feature: the AFP becomes involved in evictions of Commonwealth employees from Commonwealth land, which could raise perception issues.

The Instrument also affects the state and territory tribunals. They are ousted from jurisdiction over these disputes. If a tenant mistakenly applies to NCAT or ACAT, the tribunal must dismiss the application. The Instrument does not provide for any transition mechanism for existing proceedings; it would likely apply to proceedings commenced after its commencement date.

Finally, the Instrument indirectly affects legal practitioners and advisers. Any lawyer advising a Commonwealth employee in an external territory needs to know that the federal court is the only venue. The Instrument does not alter the substantive rights and obligations under the tenancy law, but it changes the adjudicative body and the procedural rules that apply.

The Instrument creates one clear duty: a tenant must not make an application to the state or territory tribunal. Sections 8 (NSW), 13 (Jervis Bay Territory non-Leases Ordinance) and 18 (Jervis Bay Territory Leases Ordinance) each impose this prohibition. A tenant who does so would be acting contrary to the Instrument, though the Instrument itself does not specify a penalty. The application would likely be dismissed for want of jurisdiction, and the tenant might be at risk of an adverse costs order.

The substantive rights of the parties are not created by the Instrument. They are found in the underlying state or territory tenancy law as modified. For example, a tenant in NSW retains the right not to be evicted without a termination order, the right to repairs, and the right to quiet enjoyment, but those rights are now enforceable only in the federal court. The modifications, however, may affect those rights. For Jervis Bay Territory disputes, the omission of certain ACT Act provisions could be significant. For Leases Ordinance disputes, the omission of Part 2 of the ACT Act means that the standard residential tenancy terms are replaced by the terms and conditions of the lease. This could affect the rights and obligations of the parties if the lease terms are less favourable than the statutory default provisions.

The court has the power to make termination orders and to order vacant possession. For NSW disputes, section 9(3) specifically allows the court to override any other provision of the NSW Act to set the date for vacant possession. This gives the court broader discretion than NCAT would have. For Jervis Bay Territory disputes, the Instrument does not add a similar override, so the court must act within the limits of the ACT Act as modified.

The court also has powers to execute its orders. Under sections 11, 16 and 21, the court, a relevant Registrar, and the Sheriff may exercise the respective powers of the tribunal, its principal registrar or registrar, and the sheriff’s office under the relevant state or territory law. This includes powers to issue warrants, to seize property, and to remove persons. The involvement of the Australian Federal Police in executing warrants is a notable additional right for the Commonwealth, as it provides a federal law enforcement resource to enforce possession orders.

A party cannot choose to have the dispute heard in a tribunal. The Instrument gives the federal court exclusive jurisdiction. There is no provision for the court to remit the matter to a tribunal. The Instrument does not address rights of appeal. Appeals from the Federal Circuit and Family Court of Australia (Division 2) lie to the Federal Court of Australia under the Act, subject to the usual requirements for leave or as of right. This adds an extra layer of cost and delay compared to tribunal decisions, which often have limited appeal rights.

The Instrument itself does not create any criminal penalties or civil penalties. It is a procedural and jurisdiction instrument. Penalties for breaches of the tenancy law are found in the underlying state or territory legislation. For example, the Residential Tenancies Act 2010 (NSW) contains offences for landlords who evict without a court order, who fail to provide premises in a habitable condition, or who enter premises without proper notice. Those penalties apply to the Commonwealth as a landlord, subject to any crown immunity provisions that may apply. The Instrument does not modify those penalty provisions. However, the enforcement of orders made under the Instrument is specifically provided for.

If the court makes an order, for example a termination order or an order for possession, and a party does not comply, the court can use its enforcement powers. Sections 11, 16 and 21 describe the enforcement mechanisms. For NSW disputes, the Sheriff or 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). That includes the power to execute warrants for possession, including the power to enter premises and remove persons. Critically, subsection 11(2) provides that the Sheriff or Deputy Sheriff may obtain the assistance of a member or special member of the Australian Federal Police. This is a significant enforcement tool, as it brings the AFP into what is ordinarily a state enforcement matter. For Jervis Bay Territory disputes, the enforcement mechanism is more limited. Section 16 and 21 do not include an equivalent AFP assistance clause. Instead, they focus on the court and the relevant Registrar exercising ACAT’s powers. The Sheriff is not mentioned, though the court’s general enforcement powers under the Act would still be available.

Non-compliance with a court order may also be dealt with as contempt. The Federal Circuit and Family Court of Australia has inherent power to punish contempt, which can result in fines or imprisonment. This is a stronger sanction than that available in a tribunal, which typically cannot commit for contempt. The Instrument does not expressly address this, but it follows from the court’s status as a superior court of record.

The Instrument also provides that the court may exercise any powers of the tribunal “that are relevant to determining the dispute” or “relevant to the execution of the order”. This limits the powers to those that are appropriate. The court cannot exercise a power that is not relevant, but the Instrument does not define “relevance”. This may be subject to judicial interpretation. The Instrument also replicates the tribunal’s power to make costs orders only if the relevant state or territory law allows it. For example, NCAT’s power to award costs in tenancy matters is restricted. The court would be similarly restricted when applying the law as modified.

The Instrument operates within a complex legal framework. It is made under section 133 of the Federal Circuit and Family Court of Australia Act 2021, which authorises the Attorney-General to make provision for the conferral of jurisdiction on Division 2 and for the exercise of that jurisdiction. Section 133(2) allows the Attorney-General to confer jurisdiction with respect to “Commonwealth tenancy disputes” (a term defined elsewhere in the Act). The Instrument defines that term more specifically in section 6. Section 133(3) allows the Attorney-General to make provision in respect of the court’s powers, the law to be applied, and related matters. The Instrument exercises that power for disputes involving land in New South Wales and the Jervis Bay Territory.

The Instrument repeals the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015. That instrument was the original conferral of jurisdiction under the former Federal Circuit Court of Australia Act 1999. The new Instrument updates the law to refer to the new court structure (Division 2 of the FCFCOA) and to reflect changes in the underlying state and territory laws. It does not change the basic architecture.

For NSW disputes, the Instrument applies the Residential Tenancies Act 2010 (NSW) as in force from time to time. This means any amendment to the NSW Act automatically applies to proceedings in the federal court, even if the amendment was made after the Instrument. This avoids the need to update the Instrument each time the state law changes. However, it also means that the court must keep abreast of all amendments. The modifications in section 9 are static, so if the NSW Act is restructured, the references may become obsolete or need judicial interpretation.

For Jervis Bay Territory disputes, the interaction is more layered. The Jervis Bay Territory Acceptance Act 1915 provides that certain laws of the ACT apply in the Territory, including the Residential Tenancies Act 1997 (ACT) as modified from time to time. The Instrument then takes that law and applies it with further modifications. For Leases Ordinance disputes, the Instrument also interacts with the Leases Ordinance 1992, which governs the grant of leases over land in the Territory. The Instrument expressly applies to leases granted under subsection 5(1) of that Ordinance that would be residential tenancy agreements under the ACT Act. The modifications in section 19 are extensive and significantly alter the law that would otherwise apply. For example, the omission of Part 2 of the ACT Act means that the usual statutory terms about rent, bonds and entry do not apply; instead, the lease’s own terms govern. This could advantage the Commonwealth if the lease is drafted favourably.

The Instrument does not affect the operation of the Federal Circuit and Family Court of Australia Act 2021 generally. The court’s practice and procedure, including the power to award costs, the rules of evidence, and the ability to hear appeals, continue to apply. However, the Instrument may override those general powers to the extent that the modified tenancy law provides a different rule. For example, if the NSW Act prohibits costs in certain circumstances, the court must follow that prohibition as part of the law it is applying.

The Instrument also does not interact with the Jurisdiction of Courts (Cross-vesting) Act 1987 or state cross-vesting laws. The jurisdiction is exclusive to Division 2; no other court can hear these disputes. A party cannot re-litigate a matter in a state court.

The Instrument is the second instrument on this subject. It repeals the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015 in its entirety. The 2015 instrument was made under the Federal Circuit Court of Australia Act 1999, which was replaced by the Federal Circuit and Family Court of Australia Act 2021. The new Instrument updates the court’s name and references, and it also updates the law applied. The 2015 instrument applied the NSW Residential Tenancies Act 2010 and the ACT Residential Tenancies Act 1997 as they were at that time. The 2026 Instrument applies those laws as in force from time to time, which is a notable change.

The Instrument does not amend any other Commonwealth legislation. It is a stand-alone instrument. No transitional provisions are included, so it is likely that disputes arising after the commencement date are governed by the new Instrument, while proceedings already commenced under the 2015 instrument would continue under that instrument unless the court orders otherwise.

The Instrument was made on 11 February 2026 and registered on 12 February 2026, with commencement on 13 February 2026. There is no indication of any exposure draft or consultation. As delegated legislation, it is subject to disallowance by either House of Parliament. The Explanatory Statement (if any) would provide the policy rationale, but the source text does not include it.

The Instrument is too new to have generated any reported litigation. As of the date of the instrument (February 2026), no cases have been decided under it. The predecessor 2015 instrument may have been the subject of litigation, but the source text does not refer to any such cases. Without access to the case law, it is not possible to state whether the 2015 instrument was interpreted in any significant way. It is also not possible to know whether the modifications (such as the omission of sections from the ACT Act) have been tested.

Reading the Instrument, several issues could be litigated. The definition of “Commonwealth tenancy dispute” in section 6 requires that the Commonwealth be the lessor, licensor or grantor “other than as a sublessor” or “other than as a sublicensor”. If the Commonwealth subleases property it has leased from a private owner, the dispute would not be covered. The line between a direct grant and a sub-grant could be disputed. Also, the exclusion of members of the Australian Defence Force could be challenged if a lease is held in the name of a spouse who is a civilian employee.

The constitutional limitation on non-judicial power in sections 7(2), 12(2) and 17(2) could be invoked if the court purports to exercise a power that is not judicial or incidental to judicial power. The High Court of Australia may have occasion to examine whether the tenancy jurisdiction conferred is within the Parliament’s legislative power and consistent with Chapter III.

The modifications to the ACT Act, particularly the omission of sections that protect tenants, could be challenged as discriminatory or as inconsistent with the exercise of judicial power. For example, the omission of section 86 of the ACT Act (which relates to the use of force in executing warrants) might be raised in a eviction context.

For now, the litigation history is a blank slate. Practitioners should monitor the Federal Circuit and Family Court of Australia for first instance decisions interpreting the Instrument.

Several features of the Instrument are easy to overlook but may have significant practical consequences.

Loss of tribunal access is permanent. Once a dispute falls within section 6, the tenant cannot apply to NCAT or ACAT. There is no option to choose the tribunal even if both parties consent. This is a statutory prohibition, not a waiver. A tenant who files in the tribunal will have the application dismissed, and may be ordered to pay the Commonwealth’s costs of attending.

The court may be less tenant-friendly. The Federal Circuit and Family Court of Australia (Division 2) is a court of law. It follows formal procedures, including pleadings, discovery, and the rules of evidence. A self-represented tenant may struggle. The court also has power to award costs, which is rare in tribunals. Even if the tenant wins, the risk of an adverse costs order if the claim is unsuccessful is real. The Instrument does not modify the court’s usual costs rules.

The omission of ACT Act sections is not trivial. For Jervis Bay Territory disputes, sections 76 (proceedings), 77 (making of orders), 78 (when orders take effect) and 86 (use of force) are omitted for all disputes. For Leases Ordinance disputes, additional sections are omitted including Part 2 (which implies standard terms) and provisions about termination for non-payment of rent. The effect is to remove procedural protections. For example, section 86 of the ACT Act restricts the use of force when executing a warrant; without it, the Sheriff may be able to use force without the usual safeguards.

AFP involvement in evictions. Only for NSW disputes does the Instrument explicitly allow the Sheriff to call on the AFP. This means federal police may be used to evict Commonwealth employees from Commonwealth-owned land. This could create conflicts of interest and may be perceived as heavy-handed. The Instrument does not require the AFP to be neutral; they are assisting the court’s Sheriff.

The law applied is dynamic. Both the NSW tenancies law and the Jervis Bay Territory tenancies law are defined with reference to the state or territory acts as in force from time to time. This means that if the NSW Parliament passes an amendment that increases tenant rights, that amendment automatically applies in federal court proceedings. However, the modifications in the Instrument are static. If the NSW Act is restructured or section numbers change, the references in the Instrument may become obsolete. The court would then have to interpret the Instrument’s intended effect.

No transitional provisions. The Instrument does not state what happens to disputes that arose before its commencement. It is likely that proceedings commenced under the 2015 instrument continue unaffected, but new applications after 13 February 2026 must be brought under the new Instrument. However, if a dispute arises before that date but no application is made until after, it is unclear which instrument applies. The Instrument is not retrospective, but the date of the application may be determinative.

Standard terms replaced by lease terms. For Leases Ordinance disputes, the modification in subsection 19(2)(c) replaces references to standard residential tenancy terms with references to the terms and conditions of the lease. This means that if the lease is silent on a matter (like repairs or quiet enjoyment), the tenant loses the default protection that would otherwise be implied by the ACT Act. The tenant must rely entirely on what is written in the lease.

The court’s power to order vacant possession day is broad but only for NSW. Section 9(3) allows the court to make orders about the day vacant possession is to be given “despite anything else in this Act”. This gives the court a supervening power that may override tenant protections such as minimum notice periods. No equivalent provision exists for Jervis Bay Territory disputes, so the court must follow the ACT Act’s time limits.

No mention of hardship or exceptional circumstances. The Instrument does not provide any basis for the court to refuse a termination order on hardship grounds beyond what is in the underlying legislation. For NSW, the Residential Tenancies Act 2010 includes grounds for refusing termination on hardship; that law applies. For Jervis Bay Territory, the omitted sections may remove hardship provisions. Practitioners should check the ACT Act carefully to see what remains.

Compliance with the Instrument requires awareness of its jurisdictional trigger. There is no obligation to register the instrument or to notify tenants in a particular way, but practical steps are advisable.

For Commonwealth entities managing housing in external territories and the Jervis Bay Territory. First, identify all existing and new tenancy arrangements with officers and employees (excluding Defence Force members) that involve land in an external territory or Jervis Bay Territory. If the Commonwealth is the direct lessor, licensor or grantor (not a sublessor or sublicensor), any dispute will fall within the court’s exclusive jurisdiction. For NSW, “external territory” would include places like Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. For those properties, the entity should not refer any dispute to NCAT, nor should it attempt to use the tribunal’s processes. Instead, any application (for termination, arrears, or other relief) must be made to the Federal Circuit and Family Court of Australia (Division 2). The entity should ensure its legal team is familiar with the modified law and the court’s procedures.

For Commonwealth employees. A tenant in this category must not apply to NCAT or ACAT. If a dispute arises, the tenant should seek legal advice about pursuing a claim in the federal court. The tenant should be aware that the court is more formal than a tribunal, and that costs may be awarded. The tenant should also check the lease carefully, especially for Leases Ordinance disputes in Jervis Bay Territory, because the statutory default terms do not apply; the lease is the sole source of rights.

For the court and its officers. The Federal Circuit and Family Court of Australia (Division 2) must apply the modified law faithfully. The court should develop practice directions for tenancy matters, explaining the process and the modified powers. Registrars must know the scope of their enforcement powers under sections 11, 16 and 21. The Sheriff should coordinate with the Australian Federal Police for NSW evictions, and ensure that any use of force is lawful.

For state and territory tribunals. NCAT and ACAT should have systems in place to identify Commonwealth tenancy disputes and dismiss or transfer them. The Instrument does not give the tribunal power to transfer; it only prohibits the tenant from making an application. If the tenant files anyway, the tribunal may dismiss the application for lack of jurisdiction. The Commonwealth should also not file in the tribunal.

For legal practitioners. Any lawyer acting for a Commonwealth tenant or the Commonwealth itself should verify whether the dispute falls within section 6. If it does, the matter must be filed in the Federal Circuit and Family Court of Australia (Division 2). The lawyer should also consider the potential for costs and the lack of a right to choose the tribunal. For Jervis Bay Territory matters, the modifications to the ACT Act must be studied carefully to understand the rights and obligations that actually apply.

For the Attorney-General’s Department. The Department should monitor the operation of the Instrument and consider whether further amendments are needed if state or territory laws change in ways that the modifications do not accommodate. The Department should also consider whether the omission of ACT Act sections has unintended consequences that require rectification.