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Legal Guidelines: Interim Injuction

Legal Legal
Friday 14 December, 2012

Applications for an interim injunction
under section 46PP of the AHRC Act:

Commission Guidelines

1. The purpose of these guidelines

The Federal Court and Federal Magistrates Court have the power to grant interim injunctions in unlawful discrimination cases.

The Australian Human Rights Commission may apply for an interim injunction when it has a complaint before it.

These guidelines set out how the Commission will decide whether to apply for an interim injunction.

2. The power to grant an interim injunction

Section 46PP of the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) provides:

  1. At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:

    1. the status quo, as it existed immediately before the complaint was lodged; or
    2. the rights of any complainant, respondent or affected person.
  2. The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.
  3. The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE or 46PH.
  4. The court concerned may discharge or vary an injunction granted under this section.
  5. The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

3. How will the Commission decide whether to apply for an interim injunction?

The Commission has a discretion whether to apply for an interim injunction. The Commission will exercise this discretion to apply for an injunction in limited circumstances.

The Commission will only apply for an interim injunction where it forms the view that:

  • The application has reasonable prospects of success, based on

    • whether there is a ‘serious question to be tried’ or a ‘prima facie’ case of discrimination,
    • the ‘balance of convenience’ favours the granting of an injunction, and
    • any other relevant factors.
  • It is in the public interest for the Commission to apply for an interim injunction, taking into account all of the circumstances, including
    • the capacity of the complainant, respondent or an affected person to apply for an interim injunction,
    • the extent to which the complaint affects the human rights of people who are not parties to the proceedings, and
    • whether there are special circumstances that mean it would be in the public interest to seek an interim injunction.

The President of the Commission will not take part in any decision-making process of the Commission relating to the interim injunction function. This is because the President performs the Commission’s complaint-handling functions under s 8(6) of the AHRC Act. It may create a perception of bias for the President to be involved in seeking an interim injunction in relation to a matter while also inquiring into, and attempting to conciliate, the matter.