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AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46PO

Application to court if complaint is terminated

             (1)  If:

                     (a)  a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

                     (b)  the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

Note:          Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

             (2)  The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

             (3)  The unlawful discrimination alleged in the application:

                     (a)  must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

                     (b)  must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

          (3A)  The application must not be made unless:

                     (a)  the court concerned grants leave to make the application; or

                     (b)  the complaint was terminated under paragraph 46PH(1)(h); or

                     (c)  the complaint was terminated under paragraph 46PH(1B)(b).

             (4)  If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

                     (a)  an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

                     (b)  an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

                     (c)  an order requiring a respondent to employ or re-employ an applicant;

                     (d)  an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

                     (e)  an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

                      (f)  an order declaring that it would be inappropriate for any further action to be taken in the matter.

Note 1:       The Federal Court, or a judge of that court, may award costs in proceedings under this section--see section 43 of the Federal Court of Australia Act 1976 .

Note 2:       The Federal Circuit Court, or a judge of that court, may award costs in proceedings under this section--see section 79 of the Federal Circuit Court of Australia Act 1999 .

             (5)  In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976 ).

             (6)  The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

             (7)  The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

             (8)  The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.



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