(1) If a person bound by a conservation agreement engages or proposes to engage in conduct consisting of an act or omission that constitutes a contravention of the agreement, another person bound by the agreement or the Minister may apply to the Federal Court for an injunction.
Note: Section 307 explains who is bound by a conservation agreement.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct contravening the agreement, the Court may grant an injunction restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure was, is or would be a contravention of the agreement, the Court may grant an injunction requiring the person to do the act.
Interim injunctions
(5) Before deciding an application for an injunction under this section the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
477 Discharge of injunctions
On application, the Federal Court may discharge or vary an injunction.
479 Certain considerations for granting injunctions not relevant
Prohibitory injunctions
(1) The Federal Court may grant an injunction restraining a person from engaging in conduct:
(a) 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; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person engages, or continues to engage, in conduct of that kind.
Mandatory injunctions
(2) The Federal Court may grant an injunction requiring a person to do a particular act or thing:
(a) 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 do the act or thing; and
(b) whether or not the person has previously refused or failed to do the act or thing; and
(c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person refuses or fails, or continues to refuse or fail, to do the act or thing.
480 Powers conferred are in addition to other powers of the Court
The powers conferred on the Federal Court by this Division are in addition to (and do not limit) any other powers of the Court.
Division 14A—Federal Court’s power to make remediation orders
480A Remediation orders
(1) If, after the commencement of this section, a person has engaged, or is engaging, in conduct constituting an offence or other contravention of this Act or the regulations, the Federal Court may make an order (a remediation order) requiring the person to take action (the remediation action) to repair or mitigate damage that may or will be, or that has been, caused to the environment by the contravention.
(2) In considering whether to grant a remediation order, the matters to which the Federal Court may have regard include (but are not limited to) the following:
(a) the nature and extent of the contravention;
(b) the nature and extent of the damage to the environment that may or will be, or that has been, caused by the contravention;
(c) the circumstances in which the contravention took place;
(d) whether the person has previously been found by a court in proceedings under this Act or the regulations to have engaged in any similar conduct;
(e) the cost to the person of taking the remediation action.
(3) The description in a remediation order of the remediation action may either be in general terms (for example, requiring the person to take whatever action is necessary to repair or mitigate the damage), or it may require the person to take particular action to repair or mitigate the damage.
(4) If the Federal Court makes a remediation order, it may also make an order requiring the person to provide security for the due taking of the remediation action.
(5) Application to the Federal Court for a remediation order may only be made by the Minister.
480B Discharge of remediation orders
On application by the Minister, the Federal Court may discharge or vary a remediation order.
480C Powers conferred are in addition to other powers of the Court
The powers conferred on the Federal Court by this Division are in addition to (and do not limit) any other powers of the Court.
Division 14B—Minister’s power to make remediation determinations
Subdivision A—Making of remediation determinations
480D Minister may make remediation determination
(1) If:
(a) the Minister considers that an action taken by a person after the commencement of this section contravened a civil penalty provision of Part 3; and
(b) the Minister considers it desirable to make an order under this section in relation to the action;
the Minister may make a written determination (a remediation determination) requiring the person to take action to repair or mitigate damage that may or will be, or that has been, caused by the contravention, to the matter protected by the provision of Part 3.
(2) The Minister cannot make a remediation determination at a time that is more than 6 years after the time when the person took the action referred to in paragraph (1)(a).
(3) A remediation determination is not a legislative instrument.
480E Contents of a remediation determination
(1) A remediation determination must specify the following:
(a) the person (the specified person) referred to in paragraph 480D(1)(a);
(b) the action (the specified action) referred to in that paragraph;
(c) the civil penalty provision (the specified civil penalty provision) of Part 3 referred to in that paragraph;
(d) the action (the remediation action) that the person is required to take.
(2) A remediation determination may do all or any of the following in relation to some or all of the remediation action:
(a) require action to be taken in a specified place;
(b) require action to be taken at, or by, a specified time;
(c) require a specified industry standard or code of practice to be complied with in taking action;
(d) require the taking of reasonable steps to obtain any Commonwealth, State or Territory approval or authority needed to carry out action;
(e) require the preparation, and submission to the Minister for approval, of a plan for taking action, and require action to be taken in accordance with the plan as approved by the Minister;
(f) require the spending of a specified amount of money on the taking of action;
(g) require the payment to a specified person of a specified amount or money, for the purpose of activities directed towards the protection and conservation of the matter protected by the specified civil penalty provision;
(h) require the payment to the Commonwealth of a specified amount of money as security for the due taking of action;
(i) provide for monitoring, auditing, or reporting to the Minister, in relation to the taking of action.
(3) A remediation determination must contain a statement to the effect that the specified person may apply for a reconsideration of the determination under section 480J.
480F Notifying owners and occupiers of land of proposed remediation determination
(1) Before the Minister makes a remediation determination that requires action to be taken on land that is not owned or occupied by the person proposed to be specified in the order, the Minister must:
(a) take all practicable steps to identify each person who is an owner or occupier of all or part of the land; and
(b) take all practicable steps to advise each person identified of the remediation determination that the Minister proposes to make; and
(c) give persons advised at least 20 business days to comment in writing to the Minister on the proposed remediation determination.
(2) The Minister must take the comments into account in deciding whether to make the proposed remediation determination.
480G Notifying that remediation determination has been made
As soon as practicable after a remediation determination is made, the Minister must:
(a) give the specified person a copy of the determination; and
(b) take all practicable steps to advise each person identified as mentioned in paragraph 480F(1)(a) of the making of the remediation determination.
480H Duration of remediation determinations
(1) A remediation determination comes into force:
(a) if a commencement day is specified in the determination (not being a day before paragraph 480G(a) is complied with)—on that day; or
(b) otherwise—when paragraph 480G(a) is complied with.
(2) The determination remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is set aside by the Federal Court under Subdivision B or it is revoked by the Minister under Subdivision D.
480J Ministerial reconsideration of remediation determinations
(1) Within 20 days after receiving a copy of a remediation determination as required by paragraph 480G(a), the specified person may apply to the Minister for a reconsideration of the determination.
(2) On receipt of an application for reconsideration of a remediation determination, the Minister may affirm, vary or set aside the determination.
(3) The Minister may take account of information and comments from any source the Minister considers appropriate in deciding what action to take in relation to an application under this section.
(4) The Minister must:
(a) advise the specified person of the Minister’s decision in relation to an application under this section; and
(b) take all practicable steps to advise each person identified as mentioned in paragraph 480F(1)(a) of the Minister’s decision in relation to an application under this section.
Subdivision B—Federal Court may set aside remediation determination
480K Applying to Federal Court to have remediation determination set aside
(1) Within 28 days after any of the following:
(a) the specified person receives a copy of a remediation determination as required by paragraph 480G(a); or
(b) a remediation determination is affirmed or varied under section 480J; or
(c) a remediation determination is varied by the Minister under Subdivision D;
the specified person may apply to the Federal Court to have the remediation determination set aside.
(2) On an application under subsection (1), the Federal Court must set aside the remediation determination if the Court is satisfied that:
(a) the specified action did not occur; or
(b) the specified person did not take the specified action; or
(c) the specified action was not a contravention of the specified civil penalty provision; or
(d) the remediation action is not a reasonable measure to repair or mitigate damage that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision.
(3) In considering whether the remediation determination is a reasonable measure to repair or mitigate damage that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision, the Federal Court must have regard to the following:
(a) the nature and extent of the specified action;
(b) the nature and extent of the damage to the environment that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision;
(c) the circumstances in which the specified action took place;
(d) whether the specified person has previously been found by a court in proceedings under this Act or the regulations to have engaged in any similar conduct;
(e) the cost to the specified person of taking the remediation action.
The Federal Court may also have regard to any other matters it considers relevant.
(4) The Federal Court must not set aside the remediation determination unless it is satisfied as mentioned in subsection (2).
Subdivision C—Complying with remediation determinations
480L Federal Court may order compliance with remediation determination
(1) If the Minister considers that the specified person has contravened a remediation determination, the Minister may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the specified person has contravened a remediation determination, the Court may make one or more of the following orders:
(a) an order directing the specified person to comply with the remediation determination;
(b) any other order that the Court considers appropriate.
480M Civil penalty for contravention of remediation determination
(1) The specified person must not contravene a remediation determination.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order the specified person to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the person to pay under that section for a contravention of the specified civil penalty provision.
Subdivision D—Variation or revocation of remediation determinations
480N Variation or revocation of remediation determination
(1) The Minister may, in writing, vary or revoke a remediation determination.
(2) Sections 480F and 480G apply in relation to the variation or revocation of a remediation determination in the same way as they apply in relation to the making of a remediation determination.
Division 15—Civil penalties
Subdivision A—Obtaining an order for a civil penalty
481 Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision
Application for order
(1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply on behalf of the Commonwealth to the Federal Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.
Court may order wrongdoer to pay pecuniary penalty
(2) If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision).
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
Conduct contravening more than one civil penalty provision
(4) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
482 What is a civil penalty provision?
A subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:
(a) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section); or
(b) another provision of this Act specifies that the subsection (or section) is a civil penalty provision.
483 Contravening a civil penalty provision is not an offence
A contravention of a civil penalty provision is not an offence.
484 Persons involved in contravening civil penalty provision
(1) A person must not:
(a) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(b) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(c) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(d) conspire to contravene a civil penalty provision.
(2) This Division applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.
485 Recovery of a pecuniary penalty
If the Federal Court orders a person to pay a pecuniary penalty:
(a) the penalty is payable to the Commonwealth; and
(b) the Commonwealth may enforce the order as if it were a judgment of the Court.
Subdivision B—Civil penalty proceedings and criminal proceedings
486A Civil proceedings after criminal proceedings
The Federal Court must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
486B Criminal proceedings during civil proceedings
(1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.