Notice of a Constitutional matter under section 78B of the Judiciary Act 1903 (Rule 8.11(2)) (Form 18)

Section 78B of the Judiciary Act 1903 says that where a case involves a matter arising under the Constitution or involving its interpretation, the court must not proceed until it is satisfied that notice specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and that a reasonable time has passed for them to consider intervening or removing the case to the High Court. Rule 8.11(2) of the Federal Court Rules 2011 requires the party who raised the matter to file a notice in the proper Registry in accordance with Form 18, and rule 8.12 sets out who must be served and when.

When you need it

• Your application, pleading or argument says a Commonwealth, State or Territory law is invalid, or depends on how a provision of the Constitution is interpreted.
• You raised the constitutional matter. The rule puts the obligation on the party who raised it (r 8.11(2)).
• The Court has directed a party to give notice under section 78B(2)(b).

1. 1

   Heading

   Copy the file number, District Registry, Division and party names from the proceeding.

2. 2

   Identify who raised the matter

   Insert the role of the party giving notice, for example Applicant or First Respondent.

3. 3

   Nature of the constitutional matter

   State briefly but specifically what the constitutional question is (r 8.11(2)(a)), for example which provision of the Constitution is said to be engaged and which law is challenged.

4. 4

   Facts showing section 78B applies

   Set out the facts that show the matter is one to which the rule applies (r 8.11(2)(b)), such as the claim or defence in which the point is raised.

5. 5

   Date and sign

   Sign as the party or the party's lawyer.

• File the notice in the proper Registry (r 8.11(2)), for example through eLodgment.
• Serve a copy on each person required by section 78B (the Attorneys-General) and on each other party (r 8.12(1)(a)). Notice is not needed to an Attorney-General whose government, or who personally, is already a party (s 78B(3)(b)).
• Serve it within 7 days after filing the originating application or pleading that raises the matter; otherwise at least 14 days before the hearing date if it arises before the hearing; in any other case within the time the Court directs (r 8.12(2)).
• File an affidavit of service as soon as practicable after serving (r 8.12(1)(b)), and give any Attorney-General who intervenes a copy of each filed document relevant to the constitutional matter (r 8.12(1)(c)).

• Raise the point early. The Central Practice Note asks parties to identify at the start whether a constitutional issue arises that needs a section 78B notice.
• The Court may adjourn while the notice period runs, and may order costs of the adjournment (s 78B(2)(a)), so late notice can be expensive.
• Urgent interlocutory relief can still be dealt with while notice is pending (s 78B(5)).