Part 7Compliance and enforcement

Part 7—Compliance and enforcement Division 1—Minister may request information 83—Minister may request information (1) The Minister may, at any time, request, by written notice, that a licensee provide information or material— (a) that the Minister requires for the administration or enforcement of this Act; or (b) that is related to the authorised operations or work undertaken under the relevant licence; or (c) of a prescribed kind. (2) A licensee must not fail to comply with a request under this section. Division 2—Authorised officers 84—Appointment of authorised officers (1) The Minister may, by instrument in writing, appoint a Public Service employee to be an authorised officer under this Act. (2) An appointment under this section may be made subject to such conditions as the Minister thinks fit. 85—Identity cards (1) The Minister must issue to each authorised officer an identity card— (a) stating the name of the authorised officer; and (b) containing a photograph of the authorised officer; and (c) stating that the person whose name and photograph appear on the card is an authorised officer for this Act. (2) If an authorised officer proposes to exercise powers under this Act against a person, the authorised officer must produce their identity card for inspection on request. 86—Authorised investigations An investigation by an authorised officer is an authorised investigation if the purpose of the investigation is— (a) to monitor compliance with this Act; or (b) to gather information about a suspected offence against this Act; or (c) to gather information about personal injury or loss of property related to operations under this Act; or (d) to gather information about the actual or potential environmental impact of actual or potential operations under this Act; or (e) to gather other information relevant to the administration or enforcement of this Act; or (f) to undertake any inquiry relevant to the administration or enforcement of this Act; or (g) without limiting a preceding paragraph, to inspect any operations under this Act which are creating, or are likely to create, a nuisance, or are damaging, or are likely to damage, property. 87—Powers of entry and inspection for purpose of authorised investigation (1) For the purpose of carrying out an authorised investigation, an authorised officer may— (a) enter, search, inspect and examine any premises, land or vehicle that has been or is intended to be, used for, or in connection with, any authorised operations under this Act and, where necessary for the purpose, break into or open a part of, or anything in, the premises, land or vehicle; or (b) inspect or examine anything; or (c) take photographs, audio or video recordings; or (d) carry out tests on facilities and equipment; or (e) take and remove samples; or (f) seize and retain any thing that may be evidence of non‑compliance with this Act. (2) A person must not, without reasonable excuse, obstruct an authorised officer in the exercise of powers under this section. (3) A person involved in authorised operations under this Act must give an authorised officer such assistance as is reasonably required for the effective exercise of a power conferred by this section. (4) An authorised officer may only exercise a power under subsection (1)(a) in respect of premises on the authority of a warrant issued by a magistrate (including as a warden) or justice. (5) A warrant may not be issued unless the magistrate, warden or justice (as the case may be) is satisfied that the warrant is reasonably required in the circumstances. (6) An application for the issue of a warrant— (a) may be made either personally or by telephone; and (b) must be made in accordance with any procedures prescribed by the regulations. 88—Power to require information (1) An authorised officer may require a person who may be in a position to provide information relevant to any matter subject to an authorised investigation— (a) to answer a question relevant to the investigation; or (b) to take reasonable steps to obtain information relevant to the investigation and to provide it to the authorised officer. (2) A person required to answer a question under subsection (1) must answer the question to the best of the person's knowledge, information and belief. (3) A person of whom a requirement is made under subsection (1)(b) must comply with the requirement. (4) It is not an excuse for an individual to refuse to answer a question or provide information as required under this section on the ground that to do so might tend to incriminate the individual or make the individual liable to a penalty. (5) However, if compliance with a requirement to provide information might tend to incriminate the individual or make them liable to a penalty, then the fact of the provision of the information is not admissible in evidence against the individual in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of making a false or misleading statement). (6) An authorised officer may require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a contravention of this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity. (7) A person of whom a requirement is made under subsection (6) must comply with the requirement. 89—Production of records (1) This section applies to records relating to authorised operations. (2) A person who has possession or control of a record to which this section applies must, at the request of an authorised officer— (a) produce the record for inspection by the authorised officer; and (b) answer any questions that the authorised officer reasonably asks about the record. (3) An authorised officer may— (a) retain records produced under this section for the purpose of making copies of them; or (b) if the authorised officer suspects that the records may be evidence of non‑compliance with this Act, seize and retain records produced under this section. (4) In this section— record includes any document or other form of material. Division 3—Compliance and enforcement 90—Compliance directions (1) The Minister may issue a direction under this section (a compliance direction) for the purpose of— (a) securing compliance with a requirement of this Act, a licence (including a condition of a licence) or an authorisation or direction under or in relation to a licence; or (b) preventing or bringing to an end specified operations that are contrary to this Act or a licence (including a condition of a licence); or (c) requiring the rehabilitation of an area specified in the direction on account of any operations undertaken with or without an authority required by this Act. (2) A compliance direction— (a) must be in the form of a written notice given to the person to whom the direction is issued; and (b) must— (i) specify the person to whom it is issued (whether by name or by description sufficient to identify the person); and (ii) specify the grounds on which it is issued; and (c) may impose any requirement reasonably required for the purpose for which the direction is issued including 1 or more of the following: (i) a requirement that the person discontinue, or not commence, specified operations indefinitely or for a specified period or until further notice from the Minister; (ii) a requirement that the person not undertake specified operations except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action within a specified period. (3) The Minister may, by written notice given to the person to whom a compliance direction is issued, vary or revoke the direction. (4) A person to whom a compliance direction is given under this section is entitled to enter any land in order to comply with the direction. (5) A person to whom a compliance direction is issued must comply with the direction within the time allowed in the direction. 91—Emergency directions (1) If, in the opinion of an authorised officer— (a) operations under a licence are being undertaken in a way that results in, or that is reasonably likely to result in— (i) undue damage to the environment; or (ii) contravention of an operational management plan; or (iii) contravention of a term or condition of a licence; and (b) it is urgently necessary to take action under this section, the authorised officer may, by written notice given to any person involved in undertaking the operations, issue a direction under this section (an emergency direction). (2) An emergency direction— (a) subject to subsection (3), must be in the form of a written notice given to the person to whom the direction is issued; and (b) must specify the grounds on which it is issued; and (c) may impose any requirement reasonably required for the purpose for which the direction is issued including 1 or more of the following: (i) a requirement that a person specified or identified in the direction discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from an authorised officer; (ii) a requirement that a person specified or identified in the direction take specified action within a specified period; (iii) a requirement that a person specified or identified in the direction provide the Minister or a specified authorised officer with a specified report or reports. (3) An authorised officer may, if of the opinion that urgent action is required under this section, issue an emergency direction imposing requirements of a kind referred to in subsection (2)(c) orally but, in that event, the authorised officer must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom the direction applies. (4) An emergency direction issued under this section will cease to have effect at the expiration of 3 business days after the day on which it is issued unless the Minister, within that period, confirms the direction in the manner prescribed by the regulations (and then the direction will continue to have effect for a period determined by the Minister or until revoked by an authorised officer). (5) An authorised officer may, with the approval of the Minister, by written notice given to the person to whom an emergency direction has been issued, vary or revoke the direction. (6) A person to whom an emergency direction is given under this section is entitled to enter any land in order to comply with the direction. (7) A person to whom an emergency direction relates must comply with a direction under this section within the time allowed in the direction. 92—Review of direction (1) A person required to comply with a direction under this Division may apply to the ERD Court for a review of the direction within 28 days after receiving the direction or such longer period as the Minister may allow in a particular case. (2) Unless the Minister or the Court decides to the contrary, an application for review of a direction does not suspend operation of the direction. (3) On review of a direction, the ERD Court may— (a) confirm the direction (with or without modification); or (b) revoke the direction. 93—Contravention of Act The Minister or an authorised officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in a direction under this Division a requirement for an act that might otherwise constitute a contravention of this Act and, in that event, a person incurs no liability to a penalty under this Act for compliance with the requirement. 94—Action if non‑compliance occurs (1) If the requirements of a direction under this Division are not complied with, the Minister may take the action required by the direction. (2) Any action to be taken under subsection (1) may be taken by an authorised officer or by another person authorised by the Minister for the purpose. (3) If a person other than an authorised officer is authorised to take action under subsection (2), the following provisions apply: (a) the Minister must issue the person with an instrument of authority; (b) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers under this section. (4) The reasonable costs and expenses incurred by the Minister taking action under this section constitute a debt due to the Crown. Division 4—Miscellaneous 95—Enforceable voluntary undertakings (1) The Minister may accept (by written notice) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act. (2) The giving of an undertaking does not constitute an admission of guilt by the person giving the undertaking in respect of the contravention or alleged contravention to which the undertaking relates. (3) A person must not contravene an undertaking made by the person that is in effect. Maximum penalty: $50 000. (4) If the Minister considers that a person has contravened an undertaking accepted by the Minister, the Minister may apply to the ERD Court for enforcement of the undertaking. (5) If the ERD Court is satisfied that the person has contravened the undertaking, the Court, in addition to the imposition of any penalty, may make any of the following orders: (a) an order that the person must comply with the undertaking or take specified action to comply with the undertaking; (b) an order discharging the undertaking; (c) an order directing the person to pay to the Minister— (i) the costs of the proceedings; and (ii) the reasonable costs of the Minister in monitoring compliance with the undertaking in the future; (d) any other order that the Court considers appropriate in the circumstances. (6) A person who has given an undertaking may, at any time, with the written agreement of the Minister— (a) vary the undertaking; or (b) withdraw the undertaking. (7) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if an undertaking is in effect in relation to that contravention. (8) No proceedings for a contravention or alleged contravention of this Act may be brought against a person who has given an undertaking under this section in relation to that contravention and who has completely discharged the undertaking. (9) The Minister may accept an undertaking in relation to a contravention or alleged contravention before proceedings in respect of that contravention have been finalised. (10) If the Minister accepts an undertaking before the proceedings are finalised, the Minister must take all reasonable steps to have the proceedings discontinued as soon as possible. 96—Civil remedies (1) Applications may be made to the ERD Court for 1 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 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; (d) 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 Fund) of an amount in the nature of exemplary damages determined by the Court. (2) An application under this section may be made by the Minister. (3) The power of the ERD 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 person engages in conduct of that kind. (4) The power of the ERD 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 person refuses or fails to take that action. (5) In assessing an amount to be ordered in the nature of exemplary damages, the ERD Court must have regard to— (a) any undue damage to the environment 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. (6) The power to order payment of an amount in the nature of exemplary damages may only be exercised by a judge of the ERD Court. (7) An application may be made without notice to any person and, if the ERD 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. (8) 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). (9) If, on an application under this section or before the determination of the proceedings commenced by the application, the ERD 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. (10) 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 ERD Court thinks fit; and (d) will not operate after the proceedings in which it is made are finally determined. (11) The ERD 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; or (b) to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (12). (12) If, on an application under this section alleging a contravention of this Act, the ERD Court is satisfied— (a) that the respondent has not contravened this Act; 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. (13) The ERD 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. (14) Proceedings under this section based on a contravention of this Act may be commenced at any time within 3 years after the date of the alleged contravention or, with the authorisation of the Attorney‑General, at any later time. (15) An apparently genuine document purporting to be signed by the Attorney‑General authorising 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. (16) The ERD 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. 97—Annual report (1) The Minister must, by 30 September in each year, cause a report to be published setting out the following in respect of the previous financial year: (a) the results of any authorised investigations undertaken under section 86; (b) the number of compliance directions issued under section 90; (c) the number of emergency directions issued under section 91. (2) A report published under this section must be made available on the register.