239Prohibitions on disclosure of information do not apply

239  Prohibitions on disclosure of information do not apply   This Division has effect despite any law of the Commonwealth, a State or a Territory prohibiting disclosure of the information. Part 10AB—Inspector‑General of Water Compliance (inquiry powers)   239AA  Inspector‑General may conduct inquiry Inspector‑General may conduct inquiry on own initiative  (1) The Inspector‑General may, on the Inspector‑General’s own initiative, conduct an inquiry for the purpose of performing the function referred to in paragraph 215C(1)(a), (b) or (c). Minister may direct Inspector‑General to conduct inquiry  (2) The Minister may direct the Inspector‑General, in writing, to conduct an inquiry into a particular matter related to the function referred to in paragraph 215C(1)(a), (b) or (c).  (3) A direction under subsection (2) to conduct an inquiry may specify either or both of the following:  (a) the date by which the inquiry is to be completed;  (b) that the Inspector‑General must prepare a written report on the inquiry and give it to the Minister.  (4) A direction under subsection (2) must not specify the way in which an inquiry is to be conducted.  (5) The Inspector‑General must comply with a direction given under subsection (2).  (6) A direction given under subsection (2) is not a legislative instrument. Conduct of inquiry  (7) In conducting an inquiry, the Inspector‑General must have regard to any applicable guidelines issued under section 215V and standards issued under section 215VA.  (8) The regulations may make other provision for and in relation to the process to be followed in conducting an inquiry. Note: Section 239AE makes provision in relation to reports of an inquiry. 239AB  Terms of reference for inquiry  (1) The Inspector‑General may, in writing, determine the terms of reference for an inquiry under section 239AA.  (2) A determination under subsection (1) of the terms of reference for an inquiry under section 239AA must specify the legislative powers of the Commonwealth that support the exercise by the Inspector‑General of the powers in subsections 239AC(2) and 239AD(2) in relation to the inquiry.  (3) A determination under subsection (1) is not a legislative instrument.  (4) The Inspector‑General must publish the determination of the terms of reference for an inquiry under section 239AA on the Inspector‑General’s website or the Department’s website. 239AC  Inspector‑General may require person to give information for the purpose of certain inquiries  (1) This section applies in relation to an inquiry under section 239AA if the Inspector‑General determined the terms of reference for the inquiry under section 239AB. Note: A determination under subsection 239AB(1) of the terms of reference for an inquiry under section 239AA must specify the legislative powers of the Commonwealth that support the exercise of the power in subsection (2) of this section (see subsection 239AB(2)).  (2) If the Inspector‑General reasonably believes that information (the compellable information) that may assist the Inspector‑General in conducting the inquiry is in a person’s possession, custody or control (whether held electronically or in any other form), the Inspector‑General may, by written notice, require the person to give specified compellable information to the Inspector‑General:  (a) within the period of time specified in the notice (which must be at least 14 days after the notice is given); and  (b) in the form or manner specified in the notice.  (3) A notice given under subsection (2) must also set out the effect of:  (a) subsections (4) to (6) of this section and section 239AH (which deals with the privilege against self‑incrimination and legal professional privilege); and  (b) section 137.1 of the Criminal Code (which deals with false or misleading information).  (4) A person commits an offence if: Note: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person’s state of mind (see section 154C).  (6) Subsection (5) does not apply if the person has a reasonable excuse.  (7) A person is liable to a civil penalty if:  (b) the person gives information to the Inspector‑General in compliance or purported compliance with that requirement; and Note: A person may commit an offence if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code). 239AD  Inspector‑General may require person to appear to answer questions for the purpose of certain inquiries  (1) This section applies in relation to an inquiry under section 239AA if the Inspector‑General determined the terms of reference for the inquiry under section 239AB. Note: A determination under subsection 239AB(1) of the terms of reference for an inquiry under section 239AA must specify the legislative powers of the Commonwealth that support the exercise of the power in subsection (2) of this section (see subsection 239AB(2)).  (2) If the Inspector‑General reasonably believes that a person has information or knowledge (the compellable information) that may assist the Inspector‑General in conducting the inquiry, the Inspector‑General may, by written notice, require the person to appear before the Inspector‑General to answer questions in relation to the compellable information.  (3) A notice given under subsection (2) must:  (a) specify the time and place the person must appear to answer questions; and  (b) specify the nature of the compellable information to which the questions will relate; and  (c) state that the person may be accompanied by a lawyer; and  (d) state whether any other persons may accompany the person; and  (e) set out the effect of:  (i) subsections (5) and (6) of this section and section 239AH (which deals with the privilege against self‑incrimination and legal professional privilege); and  (ii) section 137.1 of the Criminal Code (which deals with false or misleading information).  (4) The time specified under paragraph (3)(a) must be at least 14 days after the notice is given.  (6) A person is liable to a civil penalty if: Note: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person’s state of mind (see section 154C).  (7) Subsection (6) does not apply if the person has a reasonable excuse. Record of interview  (8) If a person gives answers to questions in compliance with a notice given to the person under subsection (2), the Inspector‑General must give a written record of the answers to the person. 239AE  Reports by Inspector‑General  (1) The Inspector‑General must report to the Minister on each inquiry conducted under section 239AA.  (a) the Inspector‑General conducted an inquiry under section 239AA at the request of the Minister; and  (b) the Minister requested the Inspector‑General to prepare a written report on the inquiry; the Inspector‑General must give the Minister a written report on the inquiry. Note: Certain material must not be included in a report of an inquiry (see section 239AG).  (3) The Inspector‑General may prepare a single report covering more than one inquiry conducted under section 239AA.  (4) A report of an inquiry may include findings and recommendations in relation to any matter included in the report.  (5) The Inspector‑General may publish a report of an inquiry on the Inspector‑General’s website or the Department’s website. 239AF  Responses to inquiry reports including recommendations that an agency take certain action  (a) the Inspector‑General publishes a report of an inquiry under subsection 239AE(5); and  (b) the report includes a recommendation that an agency of the Commonwealth, or an agency of a State or Territory, take certain action.  (2) The agency to which the recommendation is made must give a written response to the Inspector‑General, within 90 days after the report was published or within any longer period agreed to by the Inspector‑General, that sets out:  (a) whether the agency accepts the recommendation (in whole or in part); and  (b) if the agency accepts the recommendation (in whole or in part)—details of any action that the agency proposes to take to give effect to the recommendation (in whole or in part); and  (c) if the agency does not accept the recommendation (in whole or in part)—the reasons for not accepting the recommendation (in whole or in part).  (3) However, the agency to which the recommendation is made is not required to comply with subsection (2) if the recommendation relates to the Inspector‑General’s function referred to in paragraph 215C(1)(c).  (4) The Inspector‑General may publish a copy of each response received under subsection (2) on the Inspector‑General’s website or the Department’s website. 239AG  Including criticism in reports Opportunity to comment on critical material in report  (1) If the Inspector‑General proposes to include in a report prepared under section 239AE, or an annual report prepared under section 215Y, material that is expressly or impliedly critical of a person or body, the Inspector‑General must, before the report is finalised, give the person or body an opportunity to comment on the material.  (2) The person or body may give comments orally or in writing. Protection from liability for persons who give comments  (3) If a person or body gives comments, in good faith, under this section, the person or body is not liable:  (a) to any proceedings for contravening a law of the Commonwealth because of giving the comments; or  (b) to civil proceedings for loss, damage or injury of any kind suffered by another person because of giving the comments. No loss of legal professional privilege  (4) Information or a document does not cease to be the subject of legal professional privilege merely because it is included or referred to in comments given under this section. 239AH  Privilege against self‑incrimination and legal professional privilege not abrogated  (1) Nothing in this Part affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information or the production of the document might tend to incriminate the person or make the person liable to a penalty.  (2) Nothing in this Part affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:  (a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or Part 10AC—Powers of the ACCC to require information, etc.   239AJ  Power to require information, documents and evidence  (1) This section applies if the ACCC, the Chairperson of the ACCC or a Deputy Chairperson of the ACCC has reason to believe that a person is capable of giving information, producing documents or giving evidence relating to a matter referred to in subsection (3).  (2) A member of the ACCC may, by notice in writing given to that person (whether in Australia or outside Australia), require the person to do one or more of the following:  (a) to give to the ACCC, by writing signed by the person, within the time and in the manner specified in the notice, any such information;  (b) to produce to the ACCC, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or  (c) to appear before the ACCC, or before a member of the staff assisting the ACCC who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.  (3) For the purposes of subsection (1), the matter must be a matter:  (a) that constitutes, or may constitute, a contravention of one or more of the following:  (i) Part 5 of this Act or regulations made under Part 5 of this Act;  (ii) the Water Markets Intermediaries Code;  (iii) an undertaking under section 163 of this Act; or  (b) that is relevant to the performance of a function or the exercise of a power conferred on the ACCC by or under a provision of this Act, regulations made under this Act or the Water Markets Intermediaries Code; but only to the extent that the matter relates to a function or power that the ACCC has as a result of the enactment of the Water Amendment (Restoring Our Rivers) Act 2023 (including a matter relating to the Water Markets Intermediaries Code within the meaning of the Water Act 2007).  (4) A member of the ACCC may exercise, or continue to exercise, a power under subsection (2) in relation to a matter referred to in that subsection until:  (a) the ACCC commences proceedings in relation to the matter (other than proceedings for an injunction, whether interim or final); or  (b) the close of pleadings in relation to an application by the ACCC for a final injunction in relation to the matter.  (5) A person must not:  (a) refuse or fail to comply with a notice under subsection (2);  (b) in purported compliance with such a notice, knowingly give information or evidence that is false or misleading. Penalty: Imprisonment for 2 years or 100 penalty units, or both.  (5A) A person is liable to a civil penalty if:  (a) the person refuses or fails to comply with a notice under subsection (2); or  (b) in purported compliance with such a notice, knowingly gives information or evidence that is false or misleading.  (6) Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice. Note:  A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.  (6A) Paragraph (5A)(a) does not apply to the extent that the person is not capable of complying with the notice. Note:  A defendant bears an evidential burden in relation to the matters in this subsection: see section 154E.  (7) Paragraph (5)(a) does not apply to the extent that:  (a) the notice relates to producing documents; and  (b) the person proves that, after a reasonable search, the person is not aware of the documents; and  (c) the person provides a written response to the notice, including a description of the scope and limitations of the search. Note: A defendant bears a legal burden in relation to the matter in paragraph (b): see section 13.4 of the Criminal Code.  (7A) Paragraph (5A)(a) does not apply to the extent that:  (a) the notice relates to producing documents; and  (b) the person proves that, after a reasonable search, the person is not aware of the documents; and  (c) the person provides a written response to the notice, including a description of the scope and limitations of the search.  (8) Without limiting paragraphs (7)(b) and (7A)(b), a determination of whether a search is reasonable for the purposes of those paragraphs may take into account one or more of the following:  (a) the nature and complexity of the matter to which the notice relates;  (b) the number of documents involved;  (c) the ease and cost of retrieving a document relative to the resources of the person who was given the notice;  (d) any other relevant matter.  (9) This section does not require a person:  (a) to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or  (b) to produce a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or  (c) to give information or evidence, or to produce a document, that would disclose the deliberations of the Cabinet of a State or Territory. Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code and section 154E of this Act.  (10) This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege. Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 154E of this Act. 239AK  Oaths and affirmations for the purposes of section 239AJ  (1) If a notice under subsection 239AJ(2) requires a person to appear before the ACCC to give evidence, the ACCC may require the evidence to be given on oath or affirmation. For that purpose, any member of the ACCC may administer an oath or affirmation.  (2) If a notice under subsection 239AJ(2) requires a person to appear before a member of the staff assisting the ACCC to give evidence, the member of the staff may require the evidence to be given on oath or affirmation and may administer an oath or affirmation. 239AL  Power to vary time for the purposes of section 239AJ  (1) A member of the ACCC may vary the time specified in a notice given to a person under subsection 239AJ(2):  (a) within which the information must be given; or  (b) within which the documents must be produced; or  (c) at which the person is required to appear before the ACCC or the member of the staff assisting the ACCC who is specified in the notice.  (2) Subsection (1) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under subsection 239AJ(2).  (3) A member of the ACCC may, in writing, delegate the member’s powers under subsection (1) to a member of the staff of the ACCC who is an SES employee or an acting SES employee. 239AM  Privilege against self‑incrimination  (1) A person is not excused from giving information or producing a document under subsection 239AJ(2) on the ground that the information or document may tend to incriminate the person or expose the person to a penalty.  (2) However, the answer by an individual to any question asked in a notice under subsection 239AJ(2), or the giving by an individual of any information in pursuance of such a notice, is not admissible in evidence against the individual in any criminal proceedings, other than:  (a) proceedings for an offence against section 239AJ; or  (b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to that section. 239AN  Court may order a person to comply with a notice   If a person refuses or fails to comply with a notice under subsection 239AJ(2), a court may, on application by the ACCC, make an order directing the person to comply with the notice.