Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015

made under 10AA of the Federal Circuit Court of Australia Act 1999

Compilation No. 1  

Compilation date:   26 February 2016

Includes amendments up to: Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2016

Prepared by Attorney-General’s Department

About this compilation

This compilation

This is a compilation of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 that shows the text of the law as amended and in force on 26/2/2016 (the compilation date).

This compilation was prepared on 26/02/2016.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary

1 Name

3 Authority

4 Definitions

Part 2—Conferral of tenancy disputes involving non-self-governing territories

  4 Commonwealth tenancy disputes involving non-self-governing territories       2

Part 3—Provisions relating to Commonwealth tenancy disputes    3

Division 1— Commonwealth tenancy disputes involving lande in New   South Wales

5 Operation of this Division 3

6 Rights of the parties 3

7 Law to be applied 3

8 Modifications of applicable NSW law 4

9 Powers of the Court 4

10 Powers when executing orders made by the Court 4

Division 2 — Commonwealth teancy 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            5

 12 Rights of the parties             6

 13 Law to be applies             6

 14 Modifications of applicable Jervis Bay Territory law         7

 15 Powers of the Court                                                                                                       7

Subdivision B—Disputes involving tenancy arrangements to which the ACT Residential Tenancies Act does not apply

 16 Operation of the Subdivision           7

 17 Rights of the parties            8

 18 Laws to be applies            8

 19 Modifications of applicable Jervis Bay Terriotry law        9

 20 Powers of the Court          10

Part 1—Preliminary

1  Name

  This is the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015.

3  Authority

  This instrument is made under section 10AA of the Federal Circuit Court of Australia Act 1999.

4  Definitions

  In this instrument:

Act means the Federal Circuit Court of Australia Act 1999

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).

Part 2—Conferral of jurisdiction

4A  Commonwealth tenancy disputes involving non‑self‑governing territories

  The Federal Circuit Court of Australia 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 Court of Australia 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 Court of Australia, 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 Court of Australia 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 Court of Australia; and

 (b) a reference to the principal registrar of the Tribunal were a reference to a Registrar of the Federal Circuit Court of Australia; and

 (c) a reference to the Sheriff, or to a sheriff’s officer, were a reference to the Sheriff of the Federal Circuit Court of Australia.

 (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 Court of Australia 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 Court of Australia 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 Court of Australia makes an order when exercising jurisdiction over a Commonwealth tenancy dispute involving land in New South Wales:

 (a) the Federal Circuit Court of Australia may exercise any powers of the Civil and Administrative Tribunal under the applicable NSW law; and

 (b) a Registrar of the Federal Circuit Court of Australia 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 Court of Australia 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 Court of Australia:

 (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 Court of Australia; or

 (b) a Registrar of the Federal Circuit Court of Australia; or

 (c) the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia.

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 Court of Australia 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 Court of Australia, 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 Court of Australia 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 Court of Australia; and

 (b) a reference to the registrar were a reference to a Registrar of the Federal Circuit Court of Australia.

 (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 Court of Australia 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.

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 Court of Australia 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 Court of Australia, 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 Court of Australia 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 Court of Australia; and

 (b) a reference to the registrar were a reference to a Registrar of the Federal Circuit Court of Australia; 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 Court of Australia 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.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the amendment is set out in the endnotes.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history