35EProtection from reprisals—compensation and other orders etc.

#### 35E Protection from reprisals—compensation and other orders etc. Compensation (1) If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) is satisfied, on the application of a person (the applicant), that another person (the respondent) took or is taking a reprisal against the applicant, the Court may: (a) in any case—make an order requiring the respondent to compensate the applicant for loss, damage or injury as a result of the reprisal; or (b) if the Court is satisfied that the respondent took or is taking the reprisal against the applicant in connection with the respondent’s position as an employee of a private registered provider (within the meaning of Part IIC) or a higher education provider: (i) make an order requiring the respondent’s employer to compensate the applicant for loss, damage or injury as a result of the reprisal; or (ii) make an order requiring the respondent and the respondent’s employer jointly to compensate the applicant for loss, damage or injury as a result of the reprisal; or (iii) make an order requiring the respondent to compensate the applicant for a part of loss, damage or injury as a result of the reprisal, and make another order requiring the respondent’s employer to compensate the applicant for a part of loss, damage or injury as a result of the detrimental conduct. (2) The Court must not make an order under paragraph (1)(b) if the respondent’s employer establishes that it took reasonable precautions, and exercised due diligence, to avoid the reprisal. (3) If the Court makes an order under subparagraph (1)(b)(ii), the respondent and the respondent’s employer are jointly and severally liable to pay the compensation concerned. Injunctions, apologies and other orders (4) If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) is satisfied, on the application of a person (the applicant), that another person (the respondent) took or is taking a reprisal against the applicant, the Court may make any or all of the following orders: (a) an order granting an injunction, on such terms as the Court thinks appropriate: (i) restraining the respondent from taking the reprisal; or (ii) if the reprisal involves refusing or failing to do something—requiring the respondent to do that thing; (b) an order requiring the respondent to apologise to the applicant for taking the reprisal; (c) any other order the Court thinks is appropriate. (5) If the Federal Court or Federal Circuit and Family Court of Australia (Division 2) has power under subsection (4) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who has: (a) aided, abetted, counselled or procured the conduct against the applicant; or (b) induced the conduct against the applicant, whether through threats or promises or otherwise; or (c) been in any way (directly or indirectly) knowingly concerned in or a party to the conduct against the applicant; or (d) conspired with others to effect the conduct against the applicant. Multiple orders (6) The Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make orders under subsections (1) and (4) in respect of the same conduct. Burden of proof (7) In proceedings where a person (the applicant) seeks an order under this section in relation to another person (the respondent): (a) the applicant bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters mentioned in paragraph 35D(1)(a); and (b) if that onus is discharged—the respondent bears the onus of proving that the claim is not made out. Costs only if proceedings instituted vexatiously etc. (8) In proceedings (including an appeal) in a court in relation to a matter arising under this section, the applicant for an order under this section must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (9). (9) The applicant may be ordered to pay the costs only if: (a) the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur the costs. Interaction between remedies and criminal offences (10) To avoid doubt, a person may bring proceedings under this section in relation to the taking of a reprisal even if a prosecution for an offence against section 35F in relation to the reprisal has not been brought, or cannot be brought.