139Injunctions

#### 139 Injunctions Restraining injunctions (1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to referendums, the Federal Court of Australia (the Federal Court) may, on the application of the Electoral Commission, grant an injunction restraining the first‑mentioned person from engaging in the conduct and, if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any act or thing. Performance injunctions (2) Where: (a) a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and (b) the refusal or failure was, is, or would be, a failure to comply with, or an offence against, this Act or any other law of the Commonwealth in its application to referendums; the Federal Court may, on the application of the Electoral Commission, grant an injunction requiring the first‑mentioned person to do that act or thing. Injunctions relating to section 110C—carriage service providers (2A) Without limiting subsection (1), if: (a) an injunction could be granted under subsection (1) or (2) in relation to a contravention or proposed contravention by a person (the notifying entity) of section 110C in relation to a referendum matter; and (b) a carriage service provider supplies, or is to supply, a listed carriage service to the notifying entity; and (c) the listed carriage service is to be used solely for making bulk voice calls or sending bulk text messages; the Federal Court may, on the application of the Electoral Commission, grant an injunction restraining the carriage service provider from supplying the listed carriage service to the notifying entity. > Note: Section 110C requires the name of the person who authorised the communication of certain referendum matter to be notified. Injunctions relating to section 110C—broadcasters (2B) Without limiting subsection (1), if an injunction could be granted under subsection (1) or (2) in relation to a contravention or proposed contravention by a person (the notifying entity) of section 110C in relation to a referendum matter, the Federal Court may, on the application of the Electoral Commission, grant an injunction restraining a broadcaster from broadcasting the matter. Interim injunctions (3) Where an application is made to the Federal Court for an injunction under subsection (1), (2A) or (2B), the Federal Court may, if in the opinion of the Federal Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in subsection (1), or restraining the carriage service provider or broadcaster as referred to in subsection (2A) or (2B), pending the determination of the application. Discharging and varying injunctions (4) The Federal Court may discharge or vary an injunction granted under this section. Court not required to consider past and future conduct (5) Where an application is made to the Federal Court for the grant of an injunction under subsection (1) restraining a person from engaging in conduct of a particular kind, the power of the Federal Court to grant the injunction may be exercised: (a) if the Federal Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Federal Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind. (6) Where an application is made to the Federal Court for the grant of an injunction under subsection (1) or (2) requiring a person to do a particular act or thing, the power of the Federal Court to grant the injunction may be exercised: (a) if the Federal Court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the Federal Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or (b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing. (6A) If an application is made to the Federal Court for the grant of an injunction under subsection (2A) or (2B) restraining a carriage service provider or broadcaster as referred to in that subsection, the power of the Federal Court to grant the injunction may be exercised: (a) if the Federal Court is satisfied that the notifying entity has contravened section 110C—whether or not it appears to the Federal Court that the notifying entity intends to contravene or continue to contravene that section; or (b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the notifying entity will contravene section 110C—whether or not the notifying entity has previously contravened that section. No undertakings as to damages (7) Where the Electoral Commission makes an application to the Federal Court for the grant of an injunction under this section, the Federal Court shall not require the Electoral Commission or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages. This section does not limit other powers of the Federal Court (10) The powers conferred on the Federal Court under this section are in addition to, and not in derogation of, any other powers of the Federal Court, whether conferred by this Act or otherwise. Definitions (11) In this section: > broadcaster means: (a) a broadcaster within the meaning of subclause 4(1) of Schedule 2 to the Broadcasting Services Act 1992; or (b) the Australian Broadcasting Corporation; or (c) the Special Broadcasting Service Corporation. > bulk text message means an electronic message (within the meaning of section 5 of the Spam Act 2003) that is sent, in bulk, to electronic addresses in connection with telephone accounts. > bulk voice call means a call or calls that send in bulk a pre‑recorded message to standard telephone services.