Commonwealth Consolidated Acts Commonwealth Consolidated ActsMaking an application
(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;
an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(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.
(2A) The application may be made:
(a) by an affected person in relation to the terminated complaint:
(i) on that person's own behalf; or
(ii) on behalf of that person and one or more other affected persons in relation to the terminated complaint; or
(b) by 2 or more affected persons in relation to the terminated complaint:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other affected persons in relation to the terminated complaint; or
(c) by a person or trade union who lodged the terminated complaint, on behalf of one or more affected persons in relation to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(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).
Court orders
(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 in certain circumstances--see section 43 of the Federal Court of Australia Act 1976 .
Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under this section in certain circumstances--see section 214 of the Federal Circuit and Family Court of Australia Act 2021 .
(4A) In the case of a representative application, subsection (4) applies as if a reference to an applicant included a reference to a person on whose behalf the application is made, other than one who has opted out under subsection 46POB(3).
(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.