Subdiv 2Orders made by ERD Court

Subdivision 2—Orders made by ERD Court 65—Orders made by ERD Court (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, or an associate of the person, from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person, or an associate of the person, to take such action as may appear appropriate to the Court in the circumstances (including an order to rectify the consequences of any contravention, or to ensure that a further contravention does not occur); (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, illness, loss (including economic loss or loss of property) 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, illness, loss or damage—an order against the person who committed the contravention for payment of compensation for the injury, illness, 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 Consolidated Account) of an amount in the nature of exemplary damages determined by the Court; (e) if a person has contravened this Act—an order requiring the person to take specified action to publicise the contravention and its environmental and other consequences and any other orders made against the person. (2) 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 damage if the person engages in conduct of that kind. (3) The power conferred by subsection (1) may only be exercised by a Judge of the ERD Court. (4) In assessing an amount to be ordered in the nature of exemplary damages, the ERD Court must have regard to— (a) any harm to people or the environment or detriment to the public interest resulting from the contravention; and (b) any financial saving or other benefit that the respondent, or an associate of the respondent, stood to gain by committing the contravention; and (c) any other matter it considers relevant. (5) An application under this section may be made by— (a) the Minister; or (b) a person whose interests are affected by the subject matter of the application; or (c) any other person with the permission of the ERD Court. (6) If an application is made by a person other than the Minister— (a) the applicant must serve a copy of the application on the Minister within 3 days after filing the application with the ERD Court; and (b) the ERD Court must, on application by the Minister, join the Minister as a party to the proceedings. (7) 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). (8) An application may be made in the absence of the respondent, (or an associate of the respondent), 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. (9) 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. (10) 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. (11) An interim order— (a) may be made in the absence of the respondent or any other party; 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. (12) 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; (b) to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (13). (13) 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. (14) 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. (15) 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. (16) Without limiting the generality of subsections (12), (13) and (15), in determining whether to make any order under those subsections the ERD 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. Division 2—Civil penalties 66—Civil penalties (1) Subject to this section, if the Minister is satisfied that a person has committed an offence by contravening a provision of this Act, the Minister may, as an alternative to criminal proceedings, recover, by negotiation or by application to the ERD Court, an amount as a civil penalty in respect of the contravention. (2) The Minister 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 Minister may not make an application to the ERD Court under this section to recover an amount from a person as a civil penalty in respect of a contravention— (a) unless the Minister has served on the person a notice in the prescribed form advising the person that the person may, by notice given to the Minister in the prescribed manner, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Minister's notice to make such an election; or (b) if the person serves notice on the Minister, before the making of such an application, that the person elects to be prosecuted for the contravention. (4) The maximum amount that the Minister may recover by negotiation as a civil penalty in respect of a contravention is the sum of the amount specified by this Act as the criminal penalty in relation to that contravention and the amount of any economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention. (5) If, on an application by the Minister, the ERD 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 Minister 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 ERD Court must have regard to— (a) the nature and extent of the contravention; and (b) any 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 or the repealed 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 ERD Court. (8) If conduct of a person constitutes a contravention of 2 or more provisions of this Act, an amount may be recovered from the person under this section in relation to the contravention of any 1 or more of those provisions (provided that the person is not liable to pay more than 1 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) Furthermore— (a) 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; and (b) if 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 are commenced by the Minister, criminal proceedings against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention cannot be commenced without the authorisation of the Attorney‑General. (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) 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. Division 3—Authorised officers 67—Appointment of authorised officers (1) The Minister may appoint a suitably qualified person to be an authorised officer for the purposes of this Act. (2) An appointment under subsection (1) may be made subject to conditions or limitations specified in the instrument of appointment. (3) The Minister may, at any time— (a) vary or revoke an appointment; or (b) vary or revoke a condition of an appointment or impose a further condition. 68—Identity cards (1) An authorised officer must be issued with an identity card in a form determined by the Minister— (a) containing the person's name and a photograph of the person; and (b) stating that the person is an authorised officer for the purposes of this Act. (2) If the powers of an authorised officer have been limited by conditions under section 67, the identity card issued to the authorised officer must contain a statement of the limitation on the officer's powers. (3) The identity card must be issued as soon as is reasonably practicable after the appointment is made (but an authorised officer is not prevented from exercising powers under this Act just because an identity card is yet to be issued). (4) An authorised officer must, at the request of a person in relation to whom the authorised officer intends to exercise any powers under this Act, produce for the inspection of the person the authorised officer's identity card (unless the identity card is yet to be issued). (5) An authorised officer appointed under this Act must, on ceasing to be an authorised officer for any reason, immediately return their identity card to the Minister. Maximum penalty: $500. 69—Powers of authorised officers (1) Subject to this Act, an authorised officer may, for any reasonable purpose connected with the administration or enforcement of this Act— (a) enter and inspect any place or vehicle or anything on or in the place or vehicle; and (b) with the authority of a warrant issued under this Part or in circumstances in which the authorised officer reasonably believes that immediate action is required, use reasonable force to break into or open any part of, or anything in or on, any place or vehicle; and (c) give directions with respect to the stopping or moving of a vehicle; and (d) take and remove samples of any substance or thing from any place or vehicle for analysis; and (e) require a person to produce any documents, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process; and (f) examine, copy or take extracts from a document or information so produced or require a person to provide a copy of such a document or information; and (g) take photographs, films, audio, video or other recordings; and (h) examine or test any apparatus, plant, equipment or other thing, or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing; and (i) seize and retain, or issue a seizure order in respect of, anything that the authorised officer reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act; and (j) take onto or into any place or vehicle and use, any equipment or apparatus (such as drilling, boring, earth‑moving, testing, measuring, photographic, film, audio, video or other recording equipment or apparatus); and (k) 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; and (l) require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters; and (m) require a person holding an accreditation or authorisation or required to hold an accreditation or authorisation to produce it for inspection; and (n) require a person holding a permit to produce it for inspection; and (o) give any directions reasonably required in connection with the exercise of a power conferred by a preceding paragraph or otherwise in connection with the administration or enforcement of this Act. (2) An authorised officer may, for the purpose of investigating a matter related to the administration or enforcement of this Act, give notice in the prescribed manner to a person, requiring the person to attend personally (at a reasonable time) at a specified place in order to enable an authorised officer to put questions to the person. (3) An authorised officer may, if the officer reasonably believes that action is required to prevent a contravention of the Act— (a) seize and retain radiation apparatus or other equipment containing a radiation source, or part of such an apparatus or equipment that is essential to its operation; or (b) cause radiation apparatus or other equipment containing a radiation source to be rendered inoperable by a suitably qualified person. (4) An authorised officer may not exercise the power of entry under this section in respect of premises unless— (a) the premises are business premises being used at the time in the course of business; or (b) the authorised officer reasonably suspects that— (i) a contravention of this Act has been, is being, or is about to be, committed in the premises; or (ii) something may be found in the premises that has been used in, or constitutes evidence of, a contravention of this Act. (5) An authorised officer may not exercise the power to enter, inspect or seize a vehicle unless— (a) the vehicle is of a prescribed class; or (b) the authorised officer reasonably suspects that— (i) a contravention of this Act has been, is being, or is about to be, committed in relation to the vehicle; or (ii) something may be found in or on the vehicle that has been used in, or constitutes evidence of, a contravention of this Act. (6) If a person who is not reasonably fluent in English and whose native language is not English is suspected of having committed an offence against this Act— (a) the person is entitled to be assisted by an interpreter during any questioning conducted by an authorised officer in the course of an investigation of the suspected offence; and (b) if it appears that the person may be entitled to be assisted by an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until the person has been informed of the right to an interpreter; and (c) if the person requests the assistance of an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until an interpreter is present. (7) An authorised officer, in exercising powers under this Act, may be accompanied by such assistants as are reasonably required in the circumstances. (8) An authorised officer may require an occupier of any place or a person apparently in charge of plant, equipment, or a vehicle or other thing to give the authorised officer or a person assisting the authorised officer such assistance as is reasonably required by the authorised officer for the effective exercise of powers conferred by this Act. (9) A person who gives assistance to an authorised officer as required under subsection (8) must, if the person so requires, be reimbursed by the authorised officer or the Minister for any reasonable costs and expenses incurred in giving the assistance. (10) If the exercise of a power under this section (other than a power exercised with the authority of a warrant) results in any damage, the Minister must make good the damage as soon as is reasonably practicable or pay reasonable compensation for the damage. 70—Provisions relating to warrants (1) If, on the application of an authorised officer, a magistrate is satisfied that there are reasonable grounds to believe— (a) that a contravention of this Act has been, is being, or is about to be, committed in or on any place or a vehicle; or (b) that something may be found in or on a place that has been used in, or constitutes evidence of, a contravention of this Act; or (c) that the circumstances require immediate action, the magistrate may issue a warrant in respect of the place or vehicle authorising an authorised officer, with such assistants as the authorised officer considers necessary, to use reasonable force to break into or open any part of, or anything in or on, the place or vehicle as specified in the warrant. (2) An application for the issue of a warrant under this section— (a) may be made either personally or by telephone; and (b) must be made in accordance with any procedures prescribed by the regulations. 71—Provisions relating to seizure (1) A seizure order— (a) must be in the form of a notice given in the prescribed manner to the owner or person in control of the thing to which the order relates; and (b) may be varied or revoked by further notice given in the prescribed manner. (2) If a seizure order is issued, a person who removes or interferes with the thing to which the order relates without the approval of the Minister before an order is made under subsection (3)(b) in respect of the thing or the seizure order is discharged under subsection (3)(c) is guilty of an offence. (3) If a thing has been seized or made subject to a seizure order, the following provisions apply: (a) the thing must, if it has been seized, be held pending proceedings for an offence against this Act related to the thing seized, unless the Minister, on application, authorises its release to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Minister thinks fit (including conditions as to the giving of security for satisfaction of an order under paragraph (b)(ii)); (b) if proceedings for an offence against this Act relating to the thing are instituted within the prescribed period after its seizure or the issuing of the seizure order and the defendant is convicted or found guilty of the offence, the court may— (i) order that it be forfeited to the Minister; or (ii) where it has been released pursuant to paragraph (a) or is the subject of a seizure order—order that it be forfeited to the Minister or that the person to whom it was released or the defendant pay to the Minister an amount equal to its market value at the time of its seizure or the issuing of the seizure order, as the court thinks fit; (c) if — (i) proceedings are not instituted for an offence against this Act relating to the thing within the prescribed period after its seizure or the issuing of the seizure order; or (ii) proceedings have been so instituted and— (A) the defendant is found not guilty of the offence; or (B) the defendant is convicted or found guilty of the offence but no order for forfeiture is made under paragraph (b), then— (iii) in the case of a thing seized—the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Minister (if necessary, by action in a court of competent jurisdiction) the thing itself, or if it has been damaged or destroyed, compensation of an amount equal to its market value at the time of its seizure; or (iv) in the case of a thing subject to a seizure order—the order is discharged. (4) In subsection (3)— the prescribed period means 12 months or such longer period as the ERD Court may, on application by the Minister, allow. 72—Offences against authorised officers and other persons engaged in administration of Act (1) A person who— (a) without reasonable excuse hinders or obstructs an authorised officer or other person engaged in the administration of this Act; or (b) fails to comply with a notice given by an authorised officer under section 71; or (c) fails to answer a question put by an authorised officer to the best of the person's knowledge, information or belief; or (d) produces a document or record that the person knows, or ought to know, is false or misleading in a material particular; or (e) being the person in charge of a place or vehicle subject to an inspection and having been required to provide reasonable assistance to facilitate the inspection, refuses or fails to provide such assistance; or (f) fails without reasonable excuse to comply with a requirement or direction of an authorised officer under this Act; or (g) uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or (h) falsely represents, by words or conduct, that the person is an authorised officer, is guilty of an offence. (2) A person who assaults an authorised officer, or a person assisting an authorised officer, in the exercise of powers under this Act, is guilty of an offence. Division 4—Power to require or obtain information 73—Information discovery orders (1) The Minister may, by notice given in accordance with this section, issue an information discovery order for the purpose of obtaining information reasonably required by the Minister for the administration or enforcement of this Act. (2) An information discovery order may be issued to any person who the Minister reasonably suspects has knowledge of matters, or has possession or control of a document dealing with matters, in respect of which information is required by the Minister. (3) An information discovery order— (a) must be given in the prescribed manner to the person to whom it is issued; and (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) may require information, as specified in the order, to be furnished to the Minister in such manner and within such period as is specified in the order; and (d) must state the purpose for which the information is required; and (e) must state that the person may, within 14 days, appeal to the ERD Court against the order. (4) The Minister may, by notice given in the prescribed manner to a person to whom an information discovery order has been issued, vary or revoke the order. (5) A person to whom an information discovery order is issued must comply with the order. 74—Obtaining of information on non‑compliance with order or condition of accreditation or authorisation (1) If a person— (a) fails to furnish information as required by— (i) an information discovery order; or (ii) a condition of an accreditation or authorisation; or (b) being required by such an order or condition to furnish information, furnishes information that is inaccurate or incomplete, the Minister may take such action as is reasonably required to obtain the information. (2) Any action to be taken by the Minister under subsection (1) may be taken by an authorised officer acting on behalf of the Minister or by other persons authorised by the Minister for the purpose. (3) If a person other than an authorised officer is authorised to take action under subsection (1), the following provisions apply: (a) the Minister must issue the person with an instrument of authorisation; (b) the person may exercise such powers of an authorised officer as are reasonably required for the purpose of taking action under that subsection; (c) the provisions of this Act apply in relation to the exercise of such powers by the person in the same way as in relation to an authorised officer; (d) the person must produce the instrument of authorisation for the inspection of any person in relation to whom the person intends to exercise powers of an authorised officer. (4) The reasonable costs and expenses incurred by the Minister in taking action under this section may be recovered by the Minister as a debt from the person whose failure gave rise to the action. Division 5—Miscellaneous 75—Recovery of economic benefit (1) If in any proceedings under this Act, a court finds that a person has contravened this Act, the court may, in addition to any penalty that it may impose, order the person to pay to the Minister an amount not exceeding the court's estimation of the amount of economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention. (2) For the purposes of subsection (1), an economic benefit obtained by delaying or avoiding costs will be taken to be an economic benefit acquired as a result of a contravention if the contravention can be attributed (in whole or in part) to that delay or avoidance. (3) A court may, by an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.