Part 11Civil remedies and penalties

Part 11—Civil remedies and penalties 104—Civil remedies (1) Applications may be made to the Environment, Resources and Development Court for one or more of the following orders: (a) if a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act—an order restraining the person from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person to take any specified action; (b) if a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this Act—an order requiring the person to take that action; (c) if a person has caused environmental harm by a contravention of this Act or a repealed environment law—an order requiring the person to take specified action to make good any resulting environmental damage and, if appropriate, to take specified action to prevent or mitigate further environmental harm; (d) if the Authority or any other public authority has incurred costs or expenses in taking action to prevent or mitigate environmental harm caused by a contravention of this Act or a repealed environment law, or to make good resulting environmental damage—an order against the person who committed the contravention for payment of the reasonable costs and expenses incurred in taking that action; (e) if a person has suffered injury or loss or damage to property as a result of a contravention of this Act, or incurred costs and expenses in taking action to prevent or mitigate such injury, loss or damage—an order against the person who committed the contravention for payment of compensation for the injury, loss or damage, or for payment of the reasonable costs and expenses incurred in taking that action; (ea) if a person who has been issued with a site contamination assessment order or site remediation order has incurred costs and expenses in carrying out the requirements of the order or reimbursing the Authority for action taken in pursuance of the order—an order for payment of the whole or a portion of the costs and expenses, as the Court considers appropriate, against 1 or more other persons who caused the site contamination; (f) if the Court considers it appropriate to do so, an order against a person who has contravened this Act for payment (for the credit of the Consolidated Account) of an amount in the nature of exemplary damages determined by the Court; (g) an order for enforcement of the provisions of an environment performance agreement. (2) The power of the Court to make an order restraining a person from engaging in conduct of a particular kind may be exercised— (a) if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the 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 Court that, in the event that an order is not made, 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 harm or damage if the first-mentioned person engages in conduct of that kind. (3) The power of the Court to make an order requiring a person to take specified action may be exercised— (a) if the Court is satisfied that the person has refused or failed to take that action—whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to take that action; or (b) if it appears to the Court that, in the event that an order is not made, it is likely that the person will refuse or fail to take that action—whether or not the person has previously refused or failed to take that action and whether or not there is an imminent danger of substantial harm or damage if the first-mentioned person refuses or fails to take that action. (4) In assessing an amount to be ordered in the nature of exemplary damages, the Court must have regard to— (a) any environmental harm or detriment to the public interest resulting from the contravention; and (b) any financial saving or other benefit that the respondent stood to gain by committing the contravention; and (c) any other matter it considers relevant. (5) The power to order payment of an amount in the nature of exemplary damages may only be exercised by a Judge of the Court. (6) The power of the Court to make an order for enforcement of an environment performance agreement includes any power to make orders or provide relief that the District Court has in relation to a contract. (7) An application under this section may be made— (a) by the Authority or another administering agency; or (b) by any person whose interests are affected by the subject matter of the application; or (c) by any other person with the permission of the Court. (8) Before the Court may grant permission for the purposes of subsection (7)(c), the Court must be satisfied that— (a) the proceedings on the application would not be an abuse of the process of the Court; and (b) there is a real or significant likelihood that the requirements for the making of an order under subsection (1) on the application would be satisfied; and (c) it is in the public interest that the proceedings should be brought. (9) If an application is made by a person other than the Authority— (a) the applicant must serve a copy of the application on the Authority within three days after filing the application with the Court; and (b) the Court must, on application by the Authority, join the Authority as a party to the proceedings. (10) An application under this section may be made in a representative capacity (but, if so, the consent of all persons on whose behalf the application is made must be obtained). (11) An application may be made without notice to any person and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant permission to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section. (12) An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the application). (13) If, on an application under this section or before the determination of the proceedings commenced by the application, the Court is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order. (14) An interim order— (a) may be made on an application without notice to any person; and (b) may be made whether or not the proceedings have been referred to a conference; and (c) will be made subject to such conditions as the Court thinks fit; and (d) will not operate after the proceedings in which it is made are finally determined. (15) Where the Court makes an order requiring the respondent to take any specified action to make good any environmental damage or to prevent or mitigate further environmental harm, the provisions of Division 4 of Part 10 relating to— (a) registration of a clean-up order in relation to land; and (b) the taking of action by the Authority on non-compliance with a clean-up order; and (c) the recovery of costs and expenses by the Authority, apply in relation to the Court's order in the same way as in relation to a clean-up order issued by the Authority under that Division. (16) The Court may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for an environmental authorisation that should have been but was not made, or to remedy any other default. (17) The Court may order an applicant in proceedings under this section— (a) to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; (b) to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (18). (18) If, on an application under this section alleging a contravention of this Act or a repealed environment law, the Court is satisfied— (a) that the respondent has not contravened this Act or a repealed environment law; and (b) that the respondent has suffered loss or damage as a result of the actions of the applicant; and (c) that in the circumstances it is appropriate to make an order under this provision, the Court may, on the application of the respondent (and in addition to any order as to costs), require the applicant to pay to the respondent an amount, determined by the Court, to compensate the respondent for the loss or damage suffered by the respondent. (19) The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section. (20) Proceedings under this section based on a contravention of this Act or a repealed environment law may be commenced at any time within three years after the date of the alleged contravention or, with the authorisation of the Attorney-General, at any later time. (21) An apparently genuine document purporting to be under the hand of the Attorney-General and to authorise the commencement of proceedings under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. (22) The Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable. (23) Without limiting the generality of subsection (22), in determining whether to make any order in relation to costs the Court may have regard to the following matters (so far as they are relevant): (a) whether the applicant is pursuing a personal interest only in bringing the proceedings or is furthering a wider group interest or the public interest; (b) whether or not the proceedings raise significant issues relating to the administration of this Act. 104A—Authority may recover civil penalty in respect of contravention (1) Subject to this section, if the Authority is satisfied that a person has committed an offence by contravening a provision of this Act, the Authority may, as an alternative to criminal proceedings, recover, by negotiation or by application to the Environment, Resources and Development Court, an amount as a civil penalty in respect of the contravention. (2) The Authority may not recover an amount under this section in respect of a contravention if the relevant offence requires proof of intention or some other state of mind, and must, in respect of any other contravention, determine whether to initiate proceedings for an offence or take action under this section, having regard to the seriousness of the contravention, the previous record of the offender and any other relevant factors. (3) The Authority may not make an application to the Court under this section to recover an amount from a person as a civil penalty in respect of a contravention— (a) unless the Authority has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the Authority, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Authority's notice to make such an election; or (b) if the person serves written notice on the Authority, before the making of such an application, that the person elects to be prosecuted for the contravention. (4) The maximum amount that the Authority may recover by negotiation as a civil penalty in respect of a contravention is— (a) the amount specified by this Act as the criminal penalty in relation to that contravention; or (b) $120 000, whichever is the lesser. (5) If, on an application by the Authority, the Environment, Resources and Development Court is satisfied on the balance of probabilities that a person has contravened a provision of this Act, the Court may order the person to pay to the Authority an amount as a civil penalty (but not exceeding the amount specified by this Act as the criminal penalty in relation to that contravention). (6) In determining the amount to be paid by a person as a civil penalty, the Court must have regard to— (a) the nature and extent of the contravention; and (b) any environmental harm or detriment to the public interest resulting from the contravention; and (c) any financial saving or other benefit that the person stood to gain by committing the contravention; and (d) whether the person has previously been found, in proceedings under this Act, to have engaged in any similar conduct; and (e) any other matter it considers relevant. (7) The jurisdiction conferred by this section is to be part of the civil jurisdiction of the Court. (8) If conduct of a person constitutes a contravention of two or more provisions of this Act, an amount may be recovered from the person under this section in relation to the contravention of any one or more of those provisions (provided that the person is not liable to pay more than one amount as a civil penalty in respect of the same conduct). (9) Proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a contravention of this Act, or for enforcement of such an order, are stayed if criminal proceedings are started or have already been started against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (10) Proceedings referred to in subsection (9) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person. (11) Evidence of information given or evidence of the production of documents by a person is not admissible in criminal proceedings against the person if— (a) the person gave the evidence or produced the documents in the course of negotiations or proceedings under this section for the recovery of an amount as a civil penalty in relation to a contravention of this Act; and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the contravention. (12) However, subsection (11) does not apply to criminal proceedings in respect of the making of a false or misleading statement. (13) Proceedings for an order under this section may be commenced at any time within three years after the date of the alleged contravention or, with the authorisation of the Attorney-General, at any later time within 10 years after the date of the alleged contravention. (14) An apparently genuine document purporting to be under the hand of the Attorney‑General and to authorise the commencement of proceedings for an order under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. (15) The Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable.