100ZAuditor’s right of access to records, information etc.

100Z  Auditor’s right of access to records, information etc.  (1) An auditor who prepares a trust account audit report for the purposes of this Division in relation to an eligible water market intermediary has a right of access at all reasonable times to the financial records of the eligible water market intermediary for purposes relating to the trust account audit report.  (2) The auditor is entitled to require any assistance and explanations that the auditor requires for purposes relating to the trust account audit report:  (a) from the eligible water market intermediary; or  (b) if the eligible water market intermediary is a body corporate—from any director, secretary or senior manager of the body corporate.  (3) The eligible water market intermediary, director, secretary or senior manager must not:  (a) refuse or fail to allow the auditor access, in accordance with subsection (1), to financial records of the eligible water market intermediary; or  (b) refuse or fail to give assistance, or an explanation, to the auditor as and when required under subsection (2); or  (c) otherwise hinder, obstruct or delay the auditor in the performance or exercise of the auditor’s duties or powers. Division 6—Public warning notices 100ZA  ACCC may issue a public warning notice  (1) The ACCC may issue to the public a written notice containing a warning about the conduct of a person if:  (a) the ACCC has reasonable grounds to suspect that the conduct may constitute a contravention of Division 4 of this Part or the Water Markets Intermediaries Code; and  (b) the ACCC is satisfied that one or more persons has suffered, or is likely to suffer, detriment as a result of the conduct; and  (c) the ACCC is satisfied that it is in the public interest to issue the notice.  (2) A notice issued under subsection (1) is not a legislative instrument. Division 7—Orders to redress loss or damage suffered by non‑parties etc. 100ZB  Orders to redress loss or damage suffered by non‑parties, etc. Orders  (a) a person engages in conduct (the contravening conduct) that contravenes Division 4 or 5 of this Part or the Water Markets Intermediaries Code; and  (b) the contravening conduct causes, or is likely to cause, a class of persons to suffer loss or damage; and  (c) the class includes persons (non‑parties) who are not, or have not been, parties to a proceeding (an enforcement proceeding) instituted under Part 8 in relation to the contravening conduct; any court having jurisdiction in the matter may, on the application of the ACCC, make such order or orders (other than an award of damages) as the court thinks appropriate against the person who engaged in the conduct.  (2) A court must not make an order under subsection (1) unless the court considers that the order will:  (a) redress, in whole or in part, the loss or damage suffered by the non‑parties in relation to the contravening conduct; or  (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non‑parties in relation to the contravening conduct. Application for orders  (3) An application may be made under subsection (1) even if an enforcement proceeding in relation to the contravening conduct has not been instituted.  (4) An application under subsection (1) may be made at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues. 100ZC  Determining whether to make an order  (1) In determining whether to make an order against a person referred to in subsection 100ZB(1), a court may have regard to the conduct of:  (a) the person; and  (b) the non‑parties; in relation to the contravening conduct, since the contravention occurred.  (2) In determining whether to make an order under subsection 100ZB(1), a court need not make a finding about either of the following matters:  (a) which persons are non‑parties in relation to the contravening conduct;  (b) the nature of the loss or damage suffered, or likely to be suffered, by such persons. When a non‑party is bound by an order etc.  (a) an order is made under subsection 100ZB(1) against a person; and  (b) the loss or damage suffered, or likely to be suffered, by a non‑party in relation to the contravening conduct to which the order relates has been redressed, prevented or reduced in accordance with the order; and  (c) the non‑party has accepted the redress, prevention or reduction; then:  (d) the non‑party is bound by the order; and  (e) any other order made under subsection 100ZB(1) that relates to that loss or damage has no effect in relation to the non‑party; and  (f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non‑party in relation to that loss or damage. Division 8—Power to require information, etc. 100ZD  ACCC may require eligible water markets intermediary to give information or produce documents  (1) This section applies if an eligible water markets intermediary is required to keep, to generate or to publish information or a document under the Water Markets Intermediaries Code.  (2) The ACCC may give the eligible water markets intermediary a written notice that requires the eligible water markets intermediary to give the information, or to produce the document, to the ACCC within 21 days after the notice is given to the eligible water markets intermediary.  (3) The notice must:  (a) name the eligible water markets intermediary to which it is given; and  (b) specify:  (i) the information or document to which it relates; and  (ii) the provisions of the Water Markets Intermediaries Code which require the eligible water markets intermediary to keep, to generate or to publish the information or document; and  (c) specify that the eligible water markets intermediary must comply with the notice within the period specified in subsection (2); and  (d) explain the effect of section 100ZE (extending the period for compliance), 100ZF (civil penalty) and 100ZG (false or misleading information).  (4) The notice may relate to more than one piece of information or more than one document. 100ZE  Extending periods for complying with notices  (1) An eligible water markets intermediary that has been given a notice under section 100ZD may, at any time within the period within which the eligible water markets intermediary must comply with the notice (as extended under any previous application of subsection (2)), apply in writing to the ACCC for an extension of the period for complying with the notice.  (2) A member of the ACCC may, by written notice given to the eligible water markets intermediary, extend the period within which the eligible water markets intermediary must comply with the notice.  (3) Subsection (2) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under section 100ZD of this Act.  (4) A member of the ACCC may, in writing, delegate the member’s powers under subsection (2) to a member of the staff of the ACCC who is an SES employee or an acting SES employee.  (5) A delegate under subsection (4) must comply with any written directions of the member of the ACCC who delegated the powers. 100ZF  Compliance with notices  (1) An eligible water markets intermediary that has been given a notice under section 100ZD must comply with it within:  (a) the period of 21 days specified in the notice; or  (b) if the period for complying with the notice has been extended under section 100ZE—the period as so extended. 100ZG  False or misleading information etc.  (1) An eligible water markets intermediary must not, in compliance or purported compliance with a notice given under section 100ZD:  (a) give to the ACCC false or misleading information; or  (b) produce to the ACCC documents that contain false or misleading information.  (2) This section does not apply to:  (a) information that the eligible water markets intermediary could not have known was false or misleading; or  (b) the production to the ACCC of a document containing false or misleading information if the document is accompanied by a statement of the eligible water markets intermediary that the information is false or misleading. Division 9—Application of Part to partnerships, unincorporated associations and trusts 100ZH  Application to partnerships  (1) This Part, and the Water Markets Intermediaries Code, apply to a partnership as if the partnership were a person. However, obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners.  (2) If, apart from this subsection, a partnership would contravene a civil penalty provision, the contravention is taken to have been committed by each partner.  (3) A partner does not contravene a civil penalty provision because of subsection (2), if the partner:  (b) knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the partner becomes aware of those circumstances. 100ZJ  Application to unincorporated associations  (1) This Part, and the Water Markets Intermediaries Code, apply to an unincorporated association as if the unincorporated association were a person. However, an obligation that would otherwise be imposed on the association:  (a) is imposed on each member of the association’s committee of management instead; and  (b) may be discharged by any of the members.  (2) If, apart from this subsection, an unincorporated association would contravene a civil penalty provision, the contravention is taken to have been committed by each member of the association’s committee of management.  (3) A member of an unincorporated association’s committee of management does not contravene a civil penalty provision because of subsection (2), if the member:  (b) knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances. 100ZK  Application to trusts  (1) This Part, and the Water Markets Intermediaries Code, apply to a trust as if the trust were a person. However, an obligation that would otherwise be imposed on the trust:  (a) is imposed on each trustee of the trust instead; and  (b) may be discharged by any of the trustees.  (2) If, apart from this subsection, a trust would contravene a civil penalty provision, the contravention is taken to have been committed by each trustee of the trust.  (3) A trustee of a trust does not contravene a civil penalty provision because of subsection (2), if the trustee:  (b) knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the trustee becomes aware of those circumstances. Part 6—Commonwealth Environmental Water Holder Division 1—Establishment and functions 104  Establishment   There is to be a Commonwealth Environmental Water Holder.