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

Administered by Attorney-General's Department

Legislation au F2026L00105 In force Legislative Instrument

Legislation content

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (COMMONWEALTH TENANCY DISPUTES) INSTRUMENT 2026

EXPLANATORY STATEMENT

Issued by authority of the Attorney-General

under section 133 of the Federal Circuit and Family Court of Australia Act 2021

 

Purpose and operation of the Instrument

  1.                    Subsection 133(1) of the Federal Circuit and Family Court of Australia Act 2021 (the Act) confers jurisdiction on the Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) to hear and determine Commonwealth tenancy disputes between the parties to a lease, licence or other arrangement in which:

 

  • the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is the lessor (other than as a sublessor), or the licensor (other than as a sublicensor), or the grantor of a right or permission to possess, occupy or use land owned by the Commonwealth; and

 

  • a person other than the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee, is the lessee (other than as a sublessee), or the licensee (other than as a sublicensee) or the grantee of the right or permission.

 

  1.                    Subsection 133(2) of the Act allows the Minister, by legislative instrument, to confer jurisdiction on the FCFCOA (Division 2) in respect of any other specified Commonwealth tenancy dispute.

 

  1.                    Subsection 133(3) of the Act allows the Minister, by legislative instrument, to make provision for and in relation to all or any of the following matters in respect of a Commonwealth tenancy dispute:

 

  • the rights of the parties to the Commonwealth tenancy dispute;

 

  • the law (whether a law of the Commonwealth or a law of a State or Territory) to be applied in determining the Commonwealth tenancy dispute (the applicable law);

 

  • any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute;

 

  • the powers that the FCFCOA (Division 2) may exercise under the applicable law; and

 

  • if the FCFCOA (Division 2) makes an order when exercising jurisdiction over the Commonwealth tenancy dispute—the powers that may be exercised when executing the order or a class of orders.

 

  1.                    The Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2026 (the Instrument) replaces the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015 (the 2015 Instrument).
  2.                    The 2015 Instrument was due to sunset on 1 April 2026 in accordance with the sunsetting provisions in the Legislation Act 2003 (Legislation Act).

 

  1.                    On 24 February 2025, the then Attorney-General, the Hon Mark Dreyfus KC MP, made the Legislation (Deferral of Sunsetting—Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument) Certificate 2025 under paragraph 51(1)(c) of the Legislation Act, which deferred the sunsetting day for the 2015 Instrument by 12 months to 1 April 2026.

 

  1.                    The Instrument:

 

  • confers, for the purposes of subsection 133(2) of the Act, jurisdiction on the FCFCOA (Division 2) to hear and determine Commonwealth tenancy disputes involving land in an external Territory or in the Jervis Bay Territory (JBT) between the parties to a lease, licence or other arrangement in which the Commonwealth (or a person suing or being sued on behalf of the Commonwealth) and a Commonwealth officer or employee (other than a member of the Australian Defence Force) are the parties (Part 2);

 

  • regulates, for the purposes of subsection 133(3) of the Act, the rights, laws and powers applying in relation to Commonwealth tenancy disputes involving land in New South Wales (NSW) (Division 1 of Part 3) (such disputes fall within the original jurisdiction of the FCFCOA (Division 2) under subsection 133(1) of the Act); and

 

  • regulates, for the purposes of subsection 133(3) of the Act, the rights, laws and powers applying in relation to Commonwealth tenancy disputes involving land in the JBT (Division 2 of Part 3).

 

  1.                    The purpose and objectives of the Instrument are to ensure that there is a valid forum in which certain Commonwealth tenancy disputes can be determined and to enable the exercise of the Commonwealth tenancy disputes jurisdiction of the FCFCOA (Division 2) by ensuring clarity as to rights, laws and powers applying in such disputes.

 

  1.                    The Act specifies no conditions that need to be met before the power to make the Instrument may be exercised.

 

  1.                Consistent with Drafting Direction No. 3.8 from the Office of Parliamentary Counsel, it is appropriate for the matters dealt with in the Instrument to be made in the form of a legislative instrument rather than by regulations.

 

  1.                This Instrument is a legislative instrument for the purposes of the Legislation Act.

 

Documents incorporated by reference

  1.                The Instrument applies, with the modifications set out in the Instrument, the following legislation:

 

  • the Residential Tenancies Act 2010 (NSW) and any instruments made under that Act as in force from time to time;

 

  • the Sheriff Act 2005 (NSW); and

 

  • the Residential Tenancies Act 1997 (ACT) and any instruments made under that Act as they apply in the JBT.  

 

  1.                The NSW legislation is available at https://legislation.nsw.gov.au. The Australian Capital Territory (ACT) legislation is available at https://www.legislation.act.gov.au.

 

  1.                Paragraphs 133(3)(b) and (c) of the Act authorise the Instrument to make provision in relation to the law to be applied in determining a Commonwealth tenancy dispute and any modifications of that law that are to apply in relation to a Commonwealth tenancy dispute.  The Instrument applies the above legislation as in force from time to time. This ensures parties are not disadvantaged by having a dispute heard in the FCFCOA (Division 2) compared to a tribunal in either NSW or the ACT (as the case may be) as those tribunals apply the legislation as in force from time to time, rather than at a particular point in time.

 

Consultation

  1.                The Instrument was developed in consultation with the FCFCOA and the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts, which administers the JBT on behalf of Commonwealth. The Department of Finance was also consulted as it is responsible for providing policy advice, guidance and support on managing Commonwealth property and land. 

 

  1.                The consultation, which took place across multiple phases in 2024 and 2025, was by exchange of correspondence. Stakeholders were consulted on the Instrument being remade generally, as well as in relation to specific provisions and changes from the 2015 Instrument applicable to their policy interests or scope of responsibilities.    

 

  1.                All stakeholders consulted were supportive of the Instrument being remade to replace the 2015 Instrument. No objections or concerns were raised during the consultation process.

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

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

Instrument 2026

  1.                    The legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Instrument

  1.                    The Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2026 (the Instrument) is made under section 133 of the Federal Circuit and Family Court of Australia Act 2021 (the Act).

 

  1.                    The Instrument replaces the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015, which was due to sunset on 1 April 2026 in accordance with the sunsetting provisions in the Legislation Act 2003.

 

  1.                    Subsection 133(1) of the Act confers jurisdiction on the Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) to hear and determine Commonwealth tenancy disputes between the parties to a lease, licence or other arrangement in which:

 

  • the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is the lessor (other than as a sublessor), or the licensor (other than as a sublicensor), or the grantor of a right or permission to possess, occupy or use land owned by the Commonwealth; and

 

  • a person other than the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, or a Commonwealth officer or employee, is the lessee (other than as a sublessee), or the licensee (other than as a sublicensee) or the grantee of the right or permission.

 

  1.                    Subsection 133(2) of the Act allows the Minister, by legislative instrument, to confer jurisdiction on the FCFCOA (Division 2) in respect of any other specified Commonwealth tenancy dispute.

 

  1.                    Subsection 133(3) of the Act allows the Minister, by legislative instrument, to make provision for and in relation to all or any of the following matters in respect of a Commonwealth tenancy dispute:

 

  • the rights of the parties to the Commonwealth tenancy dispute;

 

  • the law (whether a law of the Commonwealth or a law of a State or Territory) to be applied in determining the Commonwealth tenancy dispute (the applicable law);

 

  • any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute;

 

  • the powers that the FCFCOA (Division 2) may exercise under the applicable law; and
  • if the FCFCOA (Division 2) makes an order when exercising jurisdiction over the Commonwealth tenancy dispute—the powers that may be exercised when executing the order or a class of orders.

 

  1.                    The Instrument:

 

  • confers, for the purposes of subsection 133(2) of the Act, jurisdiction on the FCFCOA (Division 2) to hear and determine Commonwealth tenancy disputes involving land in an external Territory or in the Jervis Bay Territory (JBT) between the parties to a lease, licence or other arrangement in which the Commonwealth (or a person suing or being sued on behalf of the Commonwealth) and a Commonwealth officer or employee (other than a member of the Australian Defence Force) are the parties (Part 2);

 

  • regulates, for the purposes of subsection 133(3) of the Act, the rights, laws and powers applying in relation to Commonwealth tenancy disputes involving land in New South Wales (NSW) (Division 1 of Part 3) (such disputes fall within the original jurisdiction of the FCFCOA (Division 2) under subsection 133(1) of the Act); and

 

  • regulates, for the purposes of subsection 133(3) of the Act, the rights, laws and powers applying in relation to Commonwealth tenancy disputes involving land in the JBT (Division 2 of Part 3).

 

  1.                    The purpose and objectives of the Instrument are to ensure that there is a valid forum in which certain Commonwealth tenancy disputes can be determined and to enable the exercise of the Commonwealth tenancy disputes jurisdiction of the FCFCOA (Division 2) by ensuring clarity as to rights, laws and powers applying in such disputes.

Human rights implications

  1.                    The Instrument engages the following rights:

 

  • the right to security of person: article 9 of the International Covenant on Civil and Political Rights (ICCPR);

 

  • the right to a fair hearing: article 14 of the ICCPR;

 

  • the right to freedom from arbitrary or unlawful interference with privacy: article 17 of the ICCPR; and

 

  • the right to an adequate standard of living: article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The right to security of person

  1.                Section 11 of the Instrument provides that the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) may exercise any powers of a sheriff’s officer under section 7A of the Sheriff Act 2005 (NSW) (Sheriff Act) to the extent that those powers are relevant to an order made by the FCFCOA (Division 2) when exercising jurisdiction over a Commonwealth tenancy dispute involving land in NSW.

 

  1.                Section 7A of the Sheriff Act allows a sheriff’s officer to use such force as is reasonably necessary to enforce a writ or warrant for possession of land. To the extent that the Instrument allows for the use of force in certain circumstances such as those provided in section 7A of the Sheriff Act, an individual may be deprived of liberty, but only on such grounds and in accordance with such procedure as established by law.

 

  1.                It is conceivable that situations may arise in which persons the subject of an adverse Commonwealth tenancy dispute decision by the FCFCOA (Division 2) may physically refuse to leave premises. In these situations, the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) and police officers may need to physically remove tenants who refuse to leave the premises or do not cooperate.

 

  1.                The law itself and the enforcement of it are not arbitrary, and while the security of person may be limited by powers exercised by the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2), or a member or special member of the Australian Federal Police, such limitation is both necessary and reasonable to achieve the legitimate aim of executing a warrant for possession of residential premises in connection with an order made by the FCFCOA (Division 2) when exercising jurisdiction over a Commonwealth tenancy dispute. Importantly, the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) and police officers are the only class of persons who may use force to enter premises.

 

  1.                The limitation of the class of persons who may use force, as well as the requirement that force be used only to the extent it is reasonably necessary, are important safeguards. Further, the limitation on the class of persons permitted to use force means that any person exercising the use of force has received appropriate and adequate training which ensures warrants are executed in a safe and correct manner.

The right to a fair hearing

  1.                Article 14 of the ICCPR provides for the right to a fair hearing in the determination of one’s rights and obligations in a suit at law. This right is concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

 

  1.                The Instrument engages the right to a fair hearing in that it restricts a party to a Commonwealth tenancy dispute from making an application to a tribunal in certain circumstances. Specifically, section 8 of the Instrument prevents a party from making an application to the NSW Civil and Administrative Tribunal (NCAT). Sections 13 and 18 prevent a party from making an application to the Australian Capital Territory (ACT) Civil and Administrative Tribunal (ACAT).

 

  1.                The Instrument engages but does not limit the right to a fair hearing as it ensures, as far as possible, that the rights of the parties involved in Commonwealth tenancy disputes in the FCFCOA (Division 2) remain the same as they would if the disputes were heard in a tribunal such as NCAT or ACAT.

 

  1.                The Instrument enables Commonwealth tenancy disputes to be heard and determined in the FCFCOA (Division 2), whereby parties are afforded a fair hearing. The Instrument clearly sets out the law to be applied in relation to a Commonwealth tenancy dispute and any modifications to that law, which provides clarity to parties.

 

  1.                The modifications to the law to be applied ensure, as far as practicable, that the only practical difference between Commonwealth tenancy disputes being heard in the FCFCOA (Division 2) and a tribunal such as NCAT or ACAT is the forum hearing the dispute.

The right to freedom from arbitrary or unlawful interference with privacy

  1.                Section 11 of the Instrument provides that the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) may exercise any powers of a sheriff’s officer under section 7A of the Sheriff Act to the extent that those powers are relevant to an order made by the FCFCOA (Division 2) when exercising jurisdiction over a Commonwealth tenancy dispute involving land in NSW.

 

  1.                Section 7A of the Sheriff Act allows a sheriff’s officer to enter certain premises and take all reasonably necessary steps to enforce a warrant, use such force as is reasonably necessary to enforce the warrant, and obtain the assistance of a police officer. Subsection 11(2) of the Instrument allows the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2), in exercising a power of a sheriff’s officer under section 7A of the Sheriff Act to execute a warrant for possession of residential premises, to obtain the assistance of a member or special member of the Australian Federal Police.

 

  1.                To the extent that the Instrument allows for a Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) to enforce a warrant for the possession of residential premises, it limits the right to freedom from arbitrary or unlawful interferences with privacy under article 17 of the ICCPR. Article 17 provides that any interferences with a person’s home or privacy must not only be authorised by law, but also not be arbitrary.

 

  1.                It is conceivable that situations may arise where persons the subject of an adverse Commonwealth tenancy dispute decision by the FCFCOA (Division 2) may physically refuse to leave the premises. In these situations, the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) and police officers may need to physically remove tenants who refuse to leave the premises or do not cooperate.

 

  1.                The law itself, and the enforcement of it, are not arbitrary and the limitation in these circumstances is both necessary and reasonable to achieve the legitimate aim of executing a warrant for possession of residential premises in connection with an order made by the FCFCOA (Division 2) when exercising jurisdiction over a Commonwealth tenancy dispute.

The right to an adequate standard of living

  1.                Article 11(1) of the ICESCR provides that everyone has a right to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions.

 

  1.                The Instrument allows the FCFCOA (Division 2) to make certain termination orders in respect of residential premises. For example, in circumstances where the FCFCOA (Division 2) makes a termination order in respect of residential premises, subsection 9(3) of the Instrument provides that the Court may make such orders as it considers appropriate in relation to the day that vacant possession of the premises is to be given to the landlord.

 

  1.                By providing the FCFCOA (Division 2) with discretion to make orders in connection with a termination order, it is possible that a person’s right to an adequate standard of living with respect to housing may be limited because an order may impact their access to housing. However, that possible limitation is both necessary and reasonable to enable the FCFCOA (Division 2) to lawfully exercise its jurisdiction in relation to Commonwealth tenancy disputes.

 

Conclusion

  1.                This Instrument is compatible with human rights. It engages a number of rights with respect to housing and equality under the law, without impermissibly limiting these rights.


Attachment A

NOTES ON SECTIONS

PART 1 – Preliminary

Section 1 – Name

  1.                    Section 1 provides that the title of the instrument is the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2026.

Section 2 – Commencement

  1.                    Section 2 provides that the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2026 (the Instrument) commences the day after the Instrument is registered.

Section 3 – Authority

  1.                    Section 3 provides that the Instrument is made under section 133 of the Federal Circuit and Family Court of Australia Act 2021 (the Act).  

Section 4 – Schedules

  1.                    Section 4 provides that each instrument that is specified in a Schedule to the Instrument is amended or repealed as set out in the applicable terms in the Schedule concerned, and any other item in a Schedule to the Instrument has effect according to its terms.

 

  1.                    Schedule 1 of the Instrument states that the whole of the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015 (the 2015 Instrument) is repealed.

 

  1.                    The Instrument replaces the 2015 Instrument, which is due to sunset on 1 April 2026 in accordance with the sunsetting provisions in the Legislation Act 2003 (Legislation Act).

 

  1.                    On 24 February 2025, the then Attorney-General, the Hon Mark Dreyfus KC MP, made the Legislation (Deferral of Sunsetting—Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument) Certificate 2025 under paragraph 51(1)(c) of the Legislation Act, which deferred the sunsetting day for the 2015 Instrument by 12 months to 1 April 2026.

Section 5 – Definitions

  1.                    Section 5 defines 5 terms used in the Instrument.

 

  1.                    The definitions of ‘Act’, which means the Federal Circuit and Family Court of Australia Act 2021, and ‘ACT Residential Tenancies Act’, which means the Residential Tenancies Act 1997 (ACT) (ACT Residential Tenancies Act), as in force in the Jervis Bay Territory (JBT) under section 4A of the Jervis Bay Territory Acceptance Act 1915, remain the same as in the 2015 Instrument.

 

  1.                The definitions of ‘Jervis Bay Territory tenancies law’ and ‘NSW tenancies law’ replace the 2015 Instrument definitions of ‘applicable Jervis Bay Territory law’ and ‘applicable NSW law’ respectively.

 

  • ‘Jervis Bay Territory tenancies law’ means the ACT Residential Tenancies Act and any instruments made under that Act as they apply in the JBT. ‘NSW tenancies law’ means the Residential Tenancies Act 2010 (NSW) (NSW Residential Tenancies Act) and any instruments made under that Act as in force from time to time.

 

  • The new definitions make it clear that the terms refer to the unmodified laws in the respective jurisdictions, which are then modified as appropriate and as specified in relevant parts of the Instrument. The terms are now defined only in the definitions section, which removes the need to refer to other subsections of the Instrument and, in relation to the ‘Jervis Bay Territory tenancies law’ definition, removes the need to have two different definitions (see paragraphs 4(a) and (b) of the 2015 Instrument).

 

  1.                The definition of ‘relevant Registrar’ encompasses the Chief Executive Officer and a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (FCFCOA) (Division 2). The definition has been amended from the definition in the 2015 Instrument to provide clarity, as section 7 of the Act provides that the full title of the Chief Executive Officer is the ‘Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1)’. Notwithstanding its title, the Chief Executive Officer is included in the Instrument as the position has functions with respect to both Divisions of the FCFCOA.   

PART 2 – Conferral of jurisdiction

Section 6 – Commonwealth tenancy disputes involving land in external Territory or Jervis Bay Territory and Commonwealth officer or employee

  1.                Section 6 confers jurisdiction on the FCFCOA (Division 2) to hear and determine Commonwealth tenancy disputes involving land in an external Territory or in the JBT between the parties to a lease, licence or other arrangement in certain circumstances. The section is made for the purposes of subsection 133(2) of the Act, which provides that the Minister may, by legislative instrument, confer jurisdiction on the FCFCOA (Division 2) in respect of any other specified Commonwealth tenancy dispute.

 

  1.                The section captures disputes in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is either the lessor (other than as a sublessor), the licensor (other than as a sublicensor), or the grantor of a right or permission to possess, occupy or use land owned by the Commonwealth, and a Commonwealth officer or employee (other than a member of the Australian Defence Force) is either the lessee (other than as a sublessee), the licensee (other than as a sublicensee), or the grantee of the right or permission.

 

  1.                The section heading has been changed from the equivalent provision in the 2015 Instrument (section 4A) because the fact that land is in a particular Territory is not the reason to expand the jurisdiction. The reason for the expansion of jurisdiction is to capture types of Commonwealth tenancy disputes that are not otherwise caught by subsection 133(1) of the Act, and to ensure that a valid forum exists for determining certain Commonwealth tenancy disputes.

 

  1.                The term ‘external Territory or Jervis Bay Territory’ replaces ‘non-self-governing territories’ as used in the 2015 Instrument, in the heading, and as appropriate in the section, to avoid confusion with the meaning of the latter term under international law (see article 73 of the Charter of the United Nations).

 

  1.                The term ‘external Territory’ is defined in section 2B of the Acts Interpretation Act 1901 to mean a Territory, other than an internal Territory, where an Act makes provision for the government of the Territory as a Territory. It effectively covers every Territory besides the Australian Capital Territory (ACT), the Northern Territory and the JBT.

PART 3 – Provisions for particular forms of Commonwealth tenancy disputes

Division 1 – Commonwealth tenancy disputes involving land in New South Wales

Section 7 – Operation of this Division

  1.                Section 7 provides that, for the purposes of subsection 133(3) of the Act, Division 1 of Part 3 of the Instrument makes provision in respect of certain Commonwealth tenancy disputes involving land in New South Wales (NSW).

 

  1.                Subsection 7(1) clarifies that the Division makes provision in respect of a Commonwealth tenancy dispute if the FCFCOA (Division 2) has jurisdiction to hear and determine the dispute, the dispute involves land in NSW, and the dispute involves a tenancy within the meaning of the NSW Residential Tenancies Act. Commonwealth tenancy disputes involving land in NSW are within the original jurisdiction of the FCFCOA (Division 2) under subsection 133(1) of the Act.

 

  1.                The intention of the Division is to provide clarity about the law that is to be applied by the FCFCOA (Division 2) in determining Commonwealth tenancy disputes involving land in NSW.

 

  1.                The section has been simplified from the equivalent provision in the 2015 Instrument (section 5) as it no longer replicates the list of matters that the Division makes provision in relation to. The text of the section makes it clear that it is made for the purposes of subsection 133(3) of the Act, which provides the list of matters that provision may be made for, by way of a legislative instrument, in respect of a Commonwealth tenancy dispute.

 

  1.                Subsection 7(2) clarifies that nothing in the Division has effect so as to confer non‑judicial power on the FCFCOA (Division 2), unless the non-judicial power is incidental to the exercise of judicial power by the Court. This reflects the well-established principle that a court constituted under Chapter III of the Constitution, including the FCFCOA (Division 2), cannot exercise non-judicial powers unless the non-judicial power is ancillary to the exercise of judicial power. 

Section 8 – Rights of the parties

  1.                Section 8 ensures that a party to a Commonwealth tenancy dispute, who is a tenant within the meaning of the NSW Residential Tenancies Act, cannot make an application to the NSW Civil and Administrative Tribunal (NCAT) under that Act in relation to the lease, licence or other arrangement that is the subject of the dispute.

 

  1.                The NSW Residential Tenancies Act directs matters to NCAT, which is not a court within the meaning of Chapter III of the Constitution and, as such, cannot exercise federal judicial power. Accordingly, this section ensures that Commonwealth tenancy disputes (to which the Division applies) can only be brought in the FCFCOA (Division 2), thereby providing jurisdictional certainty and precluding parties from commencing disputes in an inappropriate forum, which may increase the cost and time taken to resolve disputes.

 

  1.                This section simplifies the equivalent section in the 2015 Instrument (section 6). It does this by no longer specifying that the FCFCOA (Division 2) must have jurisdiction to hear and determine the dispute to be captured by this provision, as the requirement for the Court to have such jurisdiction is now set out in subsection 7(1) of the Instrument, which is applicable to the entirety of Division 1 of Part 3.  

Section 9 – Law to be applied and modifications

  1.                Subsection 9(1) provides that the law to be applied in determining a Commonwealth tenancy dispute under Division 1 of Part 3 of the Instrument is the ‘NSW tenancies law’ (defined in section 5) with the modifications to that law that are set out in subsections 9(2) and (3).

 

  1.                Subsection 9(2) modifies the NSW tenancies law so that a reference to NCAT were a reference to the FCFOCA (Division 2), a reference to the principal registrar of NCAT were a reference to a relevant Registrar of the FCFCOA (Division 2), and a reference to the Sheriff or to a sheriff’s officer were a reference to the Sheriff of the FCFCOA (Division 2). These modifications allow the FCFCOA (Division 2) and relevant officers of that Court to exercise necessary powers set out in the NSW tenancies law, in relation to Commonwealth tenancy disputes.

 

  1.                Subsection 9(3) provides that the NSW Residential Tenancies Act is to be applied as if it included a section stating that, despite anything else in the Act, if the FCFCOA (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 that vacant possession of the premises is to be given to the landlord. This ensures that the FCFCOA (Division 2) has discretion to consider all relevant factors when determining an appropriate date for vacant possession of the premises to be given to the landlord, including notice given in any other form.

 

  1.                The section simplifies the equivalent provisions in the 2015 Instrument as it no longer deals with the law to be applied and the modifications to that law in separate sections, as was the case in the 2015 Instrument (sections 7 and 8).

 

Section 10 – Powers of the Court

  1.                Section 10 provides that the FCFCOA (Division 2), in determining the Commonwealth tenancy dispute, may exercise any powers of NCAT under the ‘NSW tenancies law’ (defined in section 5) that are relevant to determining the dispute.

 

  1.                This section ensures, to the extent possible, that the rights of the parties to the Commonwealth tenancy dispute are substantially equivalent to what they would be if the dispute was to be heard in NCAT. 

 

  1.                Minor amendments to the drafting of this section have been made from the equivalent section in the 2015 Instrument (section 9) for clarity and to reflect the updated definitions in section 5 of the Instrument.

Section 11 – Powers when executing orders made by the Court

  1.                Section 11 sets out the powers that the FCFCOA (Division 2), a relevant Registrar, and the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) may exercise when the FCFCOA (Division 2) makes an order when exercising jurisdiction over a Commonwealth tenancy dispute under this Division. The section makes clear that those powers, which are set out in more detail below, may only be exercised to the extent that they are relevant to the execution of an order of the kind referred to in subsection 11(1).

 

  • Paragraph 11(1)(a) provides that the FCFCOA (Division 2) may exercise any powers of NCAT under the NSW tenancies law. For example, the FCFCOA (Division 2) may make an order for possession of a residential premises, consistent with section 83 of the NSW Residential Tenancies Act.

 

  • Paragraph 11(1)(b) provides that a relevant Registrar may exercise any powers of the principal registrar of NCAT under the NSW tenancies law. For example, a relevant Registrar may issue warrants for possession of premises consistent with subsection 121(1) of the NSW Residential Tenancies Act.

 

  • Paragraph 11(1)(c) provides that the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) may exercise any powers of a sheriff’s officer under section 7A of the Sheriff Act 2005 (NSW) (Sheriff Act).

 

  1.                Subsection 11(2) provides that, when exercising the power of a sheriff’s officer under section 7A of the Sheriff Act to execute a warrant for possession of residential premises, the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) may obtain the assistance of a ‘member’ or ‘special member’ of the Australian Federal Police (defined in section 4 of the Australian Federal Police Act 1979). This ensures that appropriately trained officers are available to assist in the execution of warrants in appropriate circumstances which allows warrants to be executed in a safe and correct manner.

 

  1.                Subsection 11(2) has been amended from the equivalent provision in the 2015 Instrument (subsection 10(2)) to, among other things, no longer import language from section 271 of the Act to describe the powers of the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2) to execute a warrant for possession of residential premises. Section 271 of the Act concerns an arrest warrant for a person who could be in any location, whereas section 7A of the Sheriff Act concerns a warrant for possession of land, which relates to specific residential premises, and where the legislation contemplates that the parties involved already have notice that possession of the premises is going to be taken. Section 7A of the Sheriff Act also makes clear that a sheriff’s officer may only take reasonably necessary steps to enforce the warrant and use only force that is reasonably necessary to do so.

 

  1.                Subsection 11(3) provides that nothing in section 11 of the Instrument is intended to limit any other power of the FCFCOA (Division 2), a relevant Registrar, or the Sheriff or a Deputy Sheriff of the FCFCOA (Division 2). This is a clarifying provision that is intended to avoid doubt and ensure that the Court and its officers have access to the full suite of powers that are required in order to execute and enforce orders of the Court, including those found in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025. 

Division 2 – Commonwealth tenancy disputes involving land in the Jervis Bay Territory

  1.                Division 2 of Part 3 of the Instrument covers Commonwealth tenancy disputes involving land in the JBT. The Division distinguishes leases granted under subsection 5(1) of the Leases Ordinance 1992 (Jervis Bay Territory) (Leases Ordinance) (Subdivision B) from all other leases in the JBT (Subdivision A).

 

  1.                The criteria for whether Subdivision A or Subdivision B applies to a particular Commonwealth tenancy dispute under this Division has been changed from the 2015 Instrument. The 2015 Instrument distinguished disputes involving tenancy arrangements to which the ACT Residential Tenancies Act applied (former Subdivision A) and those to which the ACT Residential Tenancies Act did not apply (former Subdivision B).

 

  1.                The amendment to this Division in the Instrument provides certainty about which of Subdivision A or Subdivision B of Division 2 of Part 3 applies to a particular dispute because, unlike the 2015 Instrument, the answer does not depend on a potentially technical examination of whether the ACT Residential Tenancies Act applies to a particular lease.

 

  1.                The amendment provides clarity for the FCFCOA (Division 2) and parties to Commonwealth tenancy disputes involving land in the JBT as it now categorises commonwealth tenancy disputes based on the source of power to grant the relevant lease. Amending the Division in this way seeks to avoid parties to a Commonwealth tenancy dispute from having to determine whether the ACT Residential Tenancies Act applies to a dispute, which may have resulted in additional costs and delays to a dispute being determined.    

Subdivision A – Disputes involving tenancy arrangements other than certain leases

Section 12 – Operation of this Subdivision

  1.                Section 12, which is made for the purposes of subsection 133(3) of the Act, provides that Subdivision A applies in relation to a Commonwealth tenancy dispute involving land in the JBT if the FCFCOA (Division 2) has jurisdiction to hear and determine the dispute, the dispute involves a residential tenancy agreement within the meaning of the ACT Residential Tenancies Act, and the dispute does not involve a lease granted under subsection 5(1) of the Leases Ordinance. Section 6 of the Instrument confers jurisdiction on the FCFCOA (Division 2) to hear and determine Commonwealth tenancy disputes involving land in the JBT.

 

  1.                The section has been simplified from the equivalent provision in the 2015 Instrument (section 11) as it no longer replicates the list of matters that the Division makes provision in relation to. The text of the section makes it clear that it is made for the purposes of subsection 133(3) of the Act, which provides the list of matters that provision may be made for, by way of a legislative instrument, in respect of a Commonwealth tenancy dispute.

 

  1.                As set out in paragraphs 36 to 39 of this explanatory statement, the criteria for whether Subdivision A applies has been simplified from the 2015 Instrument so that it is now limited to disputes that do not involve a lease granted under subsection 5(1) of the Leases Ordinance.  

 

  1.                Subsection 12(2) makes it clear that nothing in the Subdivision has effect so as to confer non‑judicial power on the FCFCOA (Division 2), unless the non-judicial power is incidental to the exercise of judicial power by the Court. This reflects the well-established principle that a court constituted under Chapter III of the Constitution, including the FCFCOA (Division 2), cannot exercise non-judicial powers unless the non-judicial power is ancillary to the exercise of judicial power.   

Section 13 – Rights of the parties

  1.                Section 13 ensures that a party to a Commonwealth tenancy dispute, who is a tenant within the meaning of the ACT Residential Tenancies Act, cannot make an application to the ACT Civil and Administrative Tribunal (ACAT) under that Act in relation to the lease, licence or other arrangement that is the subject of the dispute.

 

  1.                The ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) does not bind the Commonwealth. Accordingly, this section ensures that Commonwealth tenancy disputes (to which the Subdivision applies) can only be brought in the FCFCOA (Division 2), thereby providing certainty and precluding parties from commencing disputes in an inappropriate forum, which may increase the cost and time taken to resolve such disputes.

 

  1.                This section simplifies the equivalent section in the 2015 Instrument (section 12). It does this by no longer specifying that the FCFCOA (Division 2) must have jurisdiction to hear and determine the dispute to be captured by this provision, as the requirement for the Court to have such jurisdiction is now set out in subsection 12(1) of the Instrument and applicable to the entirety of Subdivision A of Division 2 of Part 3.

Section 14 – Law to be applied and modifications

  1.                Subsection 14(1) provides that the law to be applied in determining a Commonwealth tenancy dispute under Subdivision A is the ‘Jervis Bay Territory tenancies law’ (defined in section 5) with the modifications set out in subsection 14(2).

 

  1.                Subsection 14(2) makes the following modifications to the Jervis Bay Territory tenancies law:

 

  • paragraph 14(2)(a): substitutes a reference to ACAT or the tribunal with a reference to the FCFCOA (Division 2);

 

  • paragraph 14(2)(b): substitutes a reference to the registrar with a reference to a relevant Registrar;

 

  • paragraph 14(2)(c): omits the reference to the Territory in paragraph 83(1)(c) of the ACT Residential Tenancies Act; and

 

  • paragraph 14(2)(d): omits sections 76, 77, 78 and 86 of the ACT Residential Tenancies Act.

 

  1.                The modifications outlined in paragraphs 14(2)(a) and (b) allow the FCFCOA (Division 2) and a relevant Registrar of the Court to exercise necessary powers set out in the ACT Residential Tenancies Act in relation to the Commonwealth tenancy dispute.

 

  1.                Paragraph 83(1)(c) of the ACT Residential Tenancies Act provides that ACAT may, in relation to an application about a tenancy dispute or occupancy dispute, make ‘an order requiring the payment of an amount to the Territory or a person’. The reference to ‘Territory’ in that paragraph is omitted by paragraph 14(2)(c) of the Instrument as it is not applicable to the Instrument.

 

  1.                Paragraph 14(2)(d), which omits sections 76, 77, 78 and 86 of the ACT Residential Tenancies Act, does so because those provisions relate specifically to how ACAT is to perform its functions under the ACT Residential Tenancies Act which is not relevant to the FCFCOA (Division 2)’s exercise of its jurisdiction in relation to Commonwealth tenancy disputes.

 

  1.                This section has been simplified from the equivalent provisions in the 2015 Instrument in that it deals with the law to be applied and the modifications to that law in the same section, rather than in two sections as was the case in sections 13 and 14 in the 2015 Instrument.

 

  1.                The split of the kinds of Commonwealth tenancy disputes and the law to be applied to each type of dispute, which was set out in section 13 in the 2015 Instrument, is not replicated in the Instrument because it is a matter for the FCFCOA (Division 2), when determining a Commonwealth tenancy dispute under this Subdivision, to apply the provisions that are relevant to the dispute before it. For similar reasons, the statement that the law is to be applied ‘to the extent necessary to determine the dispute’ (see paragraphs 13(2)(c) and 13(3)(e) of the 2015 Instrument) has not been included in the Instrument.

Section 15 – Powers of the Court

  1.                Section 15 provides that the FCFCOA (Division 2) may exercise any powers that are powers of ACAT under the ‘Jervis Bay Territory tenancies law’ (defined in section 5) with the modifications set out in paragraphs 14(2)(c) and (d). This section ensures that, to the extent possible, the rights of the parties to a Commonwealth tenancy dispute are substantially equivalent to what they would be if the dispute was heard in ACAT.

Section 16 – Powers when executing orders made by the Court

  1.                Section 16 sets out the powers that the FCFCOA (Division 2) and a relevant Registrar may exercise if the FCFCOA (Division 2) makes an order when exercising jurisdiction over the Commonwealth tenancy dispute.

 

  • Paragraph 16(a) provides that the FCFCOA (Division 2) may exercise any of the powers of ACAT under the ‘Jervis Bay Territory tenancies law’ (defined in section 5) as modified by paragraphs 14(2)(c) and (d), to the extent that those powers are relevant to the execution of the order.

 

  • Paragraph 16(b) provides that a relevant Registrar may exercise any powers of a registrar of ACAT under the ‘Jervis Bay Territory tenancies law’ (defined in section 5) as modified by paragraphs 14(2)(c) and (d), to the extent that the powers are relevant to the execution of the order.

 

  1.                This section ensures that the FCFCOA (Division 2) and a relevant Registrar have the same powers to enforce and execute orders made by the Court in the exercise of its jurisdiction over Commonwealth tenancy disputes involving land in the JBT as ACAT and a registrar of ACAT would have if the dispute was not determined under the Instrument. 

Subdivision B – Disputes involving leases granted under the Leases Ordinance 1992

Section 17 – Operation of this Subdivision

  1.                Section 17, which is made for the purposes of subsection 133(3) of the Act, provides that Subdivision B of Division 2 of Part 3 applies in relation to a Commonwealth tenancy dispute involving land in the JBT if the FCFCOA (Division 2) has jurisdiction to hear and determine the dispute, the dispute involves a lease granted under subsection 5(1) of the Leases Ordinance, and the lease would be a residential tenancy agreement within the meaning of the ACT Residential Tenancies Act. Section 6 of the Instrument, which is made for the purposes of subsection 133(2) of the Act, confers jurisdiction on the FCFCOA (Division 2) to hear and determine Commonwealth tenancy disputes involving land in the JBT.

 

  1.                The section has been simplified from the equivalent provision in the 2015 Instrument (section 16) as it no longer replicates the list of matters that the Division makes provision in relation to. The text of the section makes it clear that it is made for the purposes of subsection 133(3) of the Act, which provides the list of matters that provision may be made for, by way of a legislative instrument, in respect of a Commonwealth tenancy dispute.

 

  1.                As set out in paragraphs 36 to 39 of this explanatory statement, the criteria for whether Subdivision B applies to a particular dispute has been simplified from the 2015 Instrument so that it is now limited to disputes involving leases granted under subsection 5(1) of the Leases Ordinance.

 

  1.                Subsection 17(2) makes it clear that nothing in the Subdivision has effect so as to confer non‑judicial power on the FCFCOA (Division 2), unless the non-judicial power is incidental to the exercise of judicial power by the Court. This reflects the well-established principle that a court constituted under Chapter III of the Constitution, including the FCFCOA (Division 2), cannot exercise non-judicial powers unless the non-judicial power is ancillary to the exercise of judicial power.  

Section 18 – Rights of the parties

  1.                Section 18 ensures that a party to a Commonwealth tenancy dispute, who is a tenant within the meaning of the ACT Residential Tenancies Act, cannot make an application to ACAT under that Act in relation to the lease, licence or other arrangement that is the subject of the dispute.

 

  1.                The ACAT Act does not bind the Commonwealth. Accordingly, this section ensures that Commonwealth tenancy disputes (to which the Subdivision applies) can only be brought in the FCFCOA (Division 2), thereby providing certainty and precluding parties from commencing disputes in an inappropriate forum, which may increase the cost and time taken to resolve such disputes.

 

  1.                This section simplifies the equivalent section in the 2015 Instrument (section 17). It does this by no longer specifying that the FCFCOA (Division 2) must have jurisdiction to hear and determine the dispute to be captured by this provision, as the requirement for the Court to have such jurisdiction is now set out in subsection 17(1) of the Instrument and applicable to the entirety of Subdivision B of Division 2 of Part 3.

 

Section 19 – Law to be applied and modifications

  1.                Subsection 19(1) provides that the law to be applied in determining a Commonwealth tenancy dispute under Subdivision B is the ‘Jervis Bay Territory tenancies law’ (defined in section 5) with the modifications set out in subsection 19(2).

 

  1.                Subsection 19(2) makes the following modifications to the Jervis Bay Territory tenancies law:

 

  • paragraph 19(2)(a): substitutes a reference to ACAT or the tribunal with a reference to the FCFCOA (Division 2);

 

  • paragraph 19(2)(b): substitutes a reference to the registrar with a reference to a relevant Registrar;

 

  • paragraph 19(2)(c): substitutes a reference to standard residential tenancy terms or Schedule 1 to the ACT Residential Tenancies Act with a reference to terms and conditions of the lease;

 

  • paragraph 19(2)(d): omits the reference to the Territory in paragraph 83(1)(c) of the ACT Residential Tenancies Act; and

 

  • paragraph 19(2)(e): omits several provisions of the ACT Residential Tenancies Act (set out in detail below).

 

  1.                The modifications outlined in paragraphs 19(2)(a) and (b) allow the FCFCOA (Division 2) and a relevant Registrar of the Court to exercise necessary powers set out in the ACT Residential Tenancies Act in relation to the Commonwealth tenancy dispute. 

 

  1.                The modification in paragraph 19(2)(c) ensures that the FCFCOA (Division 2) can terminate in accordance with, or for a breach of, the terms of a lease.  

 

  1.                Paragraph 83(1)(c) of the ACT Residential Tenancies Act provides that ACAT may, in relation to an application about a tenancy dispute or occupancy dispute, make ‘an order requiring the payment of an amount to the Territory or a person’. The reference to ‘Territory’ in that paragraph is omitted by paragraph 19(2)(d) of the Instrument as it is not applicable to the Instrument.

 

  1.                The Instrument no longer modifies a reference to a tenancy dispute to be a reference to a Commonwealth tenancy dispute, as was the case in paragraph 19(1)(e) of the 2015 Instrument, because it is not necessary once the tenancy is treated as if it were a residential tenancy agreement. For similar reasons, section 72 of the ACT Residential Tenancies Act, which was omitted in the 2015 Instrument by way of former paragraph 19(2)(e), has not been omitted in the Instrument.

 

  1.                Paragraph 19(1)(g) of the 2015 Instrument has not been replicated in the Instrument as it is redundant due to paragraph 19(1)(c) of the Instrument.

 

  1.                The provisions of the ACT Residential Tenancies Act which are omitted by way of paragraph 19(2)(e) of the Instrument are omitted for the following reasons:

 

  • subparagraph 19(2)(e)(i) omits Part 2: the Leases Ordinance sets out the terms and conditions of a lease granted under that Ordinance meaning that Part 2 of the ACT Residential Tenancies Act would be inconsistent with the terms and conditions of a lease to which Subdivision B applies and therefore should not be applied in relevant proceedings;  

 

  • subparagraphs 19(2)(e)(ii), (iii) and (iv) omit paragraph 43(1)(b), subparagraph 48(1)(a)(iv), and paragraph 54(1)(b): these provisions allow for orders to be made where there is a breach of the standard residential tenancy terms other than in accordance with an agreement endorsed by ACAT (which occurs under Part 2 of the ACT Residential Tenancies Act). As Part 2 of the ACT Residential Tenancies Act cannot apply to leases subject to Subdivision B of the Instrument, such orders should not be available;  

 

  • subparagraph 19(2)(e)(v) omits sections 76, 77 and 78: these provisions relate specifically to how ACAT is to perform its functions under the ACT Residential Tenancies Act and are not relevant to the FCFCOA (Division 2)’s exercise of its jurisdiction in relation to Commonwealth tenancy disputes;

 

  • subparagraph 19(2)(e)(vi) omits paragraphs 82(a) and 83(1)(e): these provisions relate specifically to powers that ACAT may exercise in certain circumstances which are not relevant to leases granted under the Leases Ordinance; and

 

  • subparagraph 19(2)(e)(vii) omits section 86: this provision makes it an offence for a party to fail to comply with an order of ACAT. It is not necessary for such an offence to be made in relation to orders of the FCFCOA (Division 2).

Section 20 – Powers of the Court

  1.                Section 20 provides that the FCFCOA (Division 2) may exercise any powers that are powers of ACAT under the ‘Jervis Bay Territory tenancies law’ (defined in section 5) with the modifications set out in paragraphs 19(2)(d) and (e). This section ensures that, to the extent possible, the rights of the parties to a Commonwealth tenancy dispute are substantially equivalent to what they would be if the dispute was heard in ACAT.

Section 21 – Powers when executing orders made by the Court

  1.                Section 21 sets out the powers that the FCFCOA (Division 2) and a relevant Registrar may exercise if the FCFCOA (Division 2) makes an order when exercising jurisdiction over the Commonwealth tenancy dispute.

 

  • Paragraph 21(a) provides that the FCFCOA (Division 2) may exercise any of the powers of ACAT under the ‘Jervis Bay Territory tenancies law’ (defined in section 5) as modified by paragraphs 19(2)(d) and (e), to the extent that those powers are relevant to the execution of the order.

 

  • Paragraph 21(b) provides that a relevant Registrar may exercise any powers of a registrar of ACAT under the ‘Jervis Bay Territory tenancies law’ (defined in section 5) as modified by paragraphs 19(2)(d) and (e), to the extent that those powers are relevant to the execution of the order.

 

  1.                This section ensures that the FCFCOA (Division 2) and a relevant Registrar have the same powers to enforce and execute orders made by the Court in the exercise of its jurisdiction over Commonwealth tenancy disputes involving land in the JBT as ACAT and a registrar of ACAT would have if the dispute was not determined under the Instrument.

SCHEDULE 1 – Repeal of the Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015

  1.                Schedule 1 provides that the whole of the 2015 Instrument is repealed. It is appropriate for the whole of the 2015 Instrument to be repealed as it was due to sunset on 1 April 2026 in accordance with the sunsetting provisions in the Legislation Act and is now replaced by the Instrument.

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.