(3) The Water Markets Intermediaries Code may confer on a person or body functions and powers in relation to the code, including functions and powers in relation to the following matters:
(a) monitoring compliance with the code;
(b) dealing with disputes or complaints arising under, or in relation to, the code;
(c) conducting investigations under, or in relation to, the code;
(d) providing exemptions from the code or specified provisions of the code;
(e) reviewing, or reporting on, the operation of the code or activities under, or in relation to, the code;
(f) any other matter relating to the operation, application or administration of the code.
(4) For the purposes of subsection (3), the persons or bodies on whom the Water Markets Intermediaries Code may confer functions and powers are:
(a) if the function or power is a function of providing, or a power to provide, exemptions from the code or specified provisions of the code:
(i) the Minister; or
(ii) the ACCC; or
(b) otherwise—any person or body (whether or not a participant in the water market), including a person or body referred to in paragraph (a).
How functions and powers are to be exercised
(5) If the Water Markets Intermediaries Code confers on a person or body a function or power in relation to the code, the code may provide that the function or power is to be exercised by legislative instrument or other kind of written instrument.
(6) However, if the Water Markets Intermediaries Code confers on a person or body a function of providing, or a power to provide, exemptions from the code or specified provisions of the code, then (despite anything to the contrary in the code):
(a) the function or power must be exercised by written instrument (an exemption instrument); and
(b) if the code does not provide that an exemption instrument made under the code is a legislative instrument, then:
(i) if each exemption provided by the instrument relates to a particular entity—the instrument is a notifiable instrument; or
(ii) otherwise—the instrument is a legislative instrument.
Note: If the code provides that an exemption instrument made under the code is a legislative instrument, then the instrument is a legislative instrument: see subsection 8(2) of the Legislation Act 2003.
Requirements to provide information
(7) The Water Markets Intermediaries Code:
(a) may require a person or body to provide another person or body with information or documents relevant to the operation, application or administration of the code (whether or not the code relates to any of those persons); and
(b) may confer on a person or body (whether or not the code relates to the person) a function of imposing, or a power to impose, a requirement of the kind mentioned in paragraph (a).
(8) Paragraph (7)(b) does not limit subsection (3).
100H Incorporation of instruments, etc.
(1) If the regulations prescribe a Water Markets Intermediaries Code, the regulations may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
(2) If this Act provides that the Water Markets Intermediaries Code may include a provision of a certain kind, then:
(a) the Water Markets Intermediaries Code may include a provision of that kind, whether or not the provision regulates conduct of a kind mentioned in subsection 100G(1); and
(b) if the Water Markets Intermediaries Code does include a provision of that kind, the inclusion of the provision does not prevent the code from being the Water Markets Intermediaries Code.
100J Water Markets Intermediaries Code may prescribe pecuniary penalties
The Water Markets Intermediaries Code may prescribe a pecuniary penalty not exceeding 600 penalty units for a contravention of a civil penalty provision of the code.
100K Water Markets Intermediaries Code may provide for civil penalties
The Water Markets Intermediaries Code may provide that a specified provision, or specified provisions, of the code are civil penalty provisions.
100L Functions and powers of ACCC under Water Markets Intermediaries Code
To avoid doubt, the functions and powers of the ACCC under this Act include any function or power conferred on the ACCC by the Water Markets Intermediaries Code.
Division 4—Contravention of Water Markets Intermediaries Code
100M Contravention of Water Markets Intermediaries Code
An eligible water markets intermediary must not contravene the Water Markets Intermediaries Code.
100N Ancillary contravention of Water Markets Intermediaries Code—operation in addition to section 154A
(1) In addition to the operation of section 154A in relation to a contravention of a provision of the Water Markets Intermediaries Code that is a civil penalty provision:
(a) an eligible water markets intermediary must not attempt to contravene a provision of the Water Markets Intermediaries Code that is not a civil penalty provision; and
(b) a person must not do any of the following in relation to a provision of the Water Markets Intermediaries Code that is not a civil penalty provision;
(i) aid, abet, counsel or procure a contravention of the provision;
(ii) induce (by threats, promises or otherwise) a contravention of the provision;
(iii) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of the provision;
(iv) conspire with others to effect a contravention of the provision.
Note: Section 154A provides for ancillary contraventions of civil penalty provisions.
(2) A person who contravenes subsection (1) in relation to a provision of the Water Markets Intermediaries Code is taken to have contravened the provision.
Division 5—Statutory trust accounting framework for eligible water markets intermediaries
100P Application of this Division
This Division applies to an eligible water markets intermediary that receives money on behalf of another person in the course of providing water markets intermediary services.
100Q Exception to the application of this Division: State or Territory laws
(1) Despite section 100P, this Division, or a specified provision of this Division, does not apply to an eligible water markets intermediary in relation to a period when:
(a) the eligible water market intermediary maintains a trust account in accordance with a law of a State or Territory that makes provision for a statutory trust accounting scheme; and
(b) the law of the State or Territory is prescribed by the regulations for the purposes of this paragraph; and
(c) regulations for the purposes of this paragraph specify that this Division, or the specified provision of this Division, does not apply to an eligible water market intermediary, or an eligible water market intermediary included in a specified class, during a period when the eligible water market intermediary maintains a trust account in accordance with the law of the State or Territory.
(2) Before a law of a State or Territory is prescribed for the purposes of paragraph (1)(b), the Minister must be satisfied that the statutory trust accounting scheme for which the law makes provision is equivalent in substance to the statutory trust accounting framework established under this Division.
(3) For the purposes of considering whether a statutory trust accounting scheme of a law of a State or Territory is equivalent in substance to the statutory trust accounting framework established under this Division, the Minister must have regard to the matters prescribed by the regulations for the purposes of this subsection.
(4) Without limiting subsection (3), regulations for the purposes of that subsection may prescribe matters for and in relation to the following in relation to a statutory trust accounting scheme of a law of a State or Territory:
(a) audit requirements;
(b) external examination requirements;
(c) requirements in relation to accounting records and practices;
(d) obligations in relation to the deposit and receipt of trust funds;
(e) the capacity for the scheme to deal with the trade or transfer of eligible tradeable water rights including, but not limited to, a trade or transfer that is not part of the transfer of land;
(f) the adequacy of the protection of trust monies;
(g) any other matter that the Minister considers relevant.
100R Obligation for eligible water markets intermediaries to maintain trust account
Requirement to maintain trust account
(1) An eligible water markets intermediary to which this Division applies must maintain one or more trust accounts (a trust account) in accordance with this section.
(2) A trust account must be maintained with an Australian ADI (within the meaning of section 9 of the Corporations Act 2001).
(3) A trust account must be designated in the manner specified in the Water Markets Intermediaries Code including, but not limited to, in relation to the following matters:
(a) naming of the trust account;
(b) the inclusion of the words “trust account” in the name;
(c) the inclusion of the name of the trustee in the name;
(d) specific naming requirements if the trust account is held by an entity of a particular kind.
(4) A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).
Civil penalty: 600 penalty units.
100S Obligation to notify the ACCC of trust account and appoint an auditor
(1) Within 3 months of the first day on which the obligation for an eligible water markets intermediary to maintain a trust account in accordance with this Division arises, the eligible water markets intermediary must:
(a) appoint an auditor; and
(b) notify the ACCC that the eligible water markets intermediary is maintaining a trust account.
(2) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 600 penalty units.
100T Obligations in relation to trust account money
(1) An eligible water markets intermediary to which this Division applies must pay to the credit of the trust account any money received on behalf of another person in relation to the water markets intermediary services provided by the eligible water markets intermediary.
(2) The eligible water markets intermediary must not pay to the credit of the trust account any money other than in accordance with subsection (1).
(3) The eligible water markets intermediary must not withdraw any money paid into the trust account, other than for the purpose of paying the money in accordance with subsection (4).
(4) The eligible water markets intermediary must pay any money withdrawn from the trust account to the person or persons lawfully entitled to receive that money.
(5) A person is liable to a civil penalty if the person contravenes subsection (1), (2), (3) or (4).
Civil penalty: 600 penalty units.
100U Trust account money not available to pay debts, etc.
Money paid into a trust account by an eligible water markets intermediary under section 100T:
(a) is not available for the payment of a debt of a creditor of the eligible water markets intermediary; and
(b) is not liable to be attached or taken in execution under the order or process of a court at the instance of any such creditors.
100V Requirement to prepare trust account statements
(1) An eligible water market intermediary to which this Division applies must, for each financial year of the eligible water market intermediary:
(a) prepare a written statement (the trust account statement) in relation to the trust account of the eligible water market intermediary; and
(b) obtain an auditor’s report (the trust account audit report) prepared in accordance with this section.
(2) The trust account statement and the trust account audit report must:
(a) be in the approved form; and
(b) contain the information and matters specified in the Water Markets Intermediaries Code.
(3) The trust account audit report must:
(a) be prepared by a person who complies with any eligibility requirements specified by the Water Markets Intermediaries Code; and
(b) be accompanied by any information or documents specified in the Water Markets Intermediaries Code in relation to that person.
(4) The trust account statement must be prepared, and the trust account audit report must be obtained, within 3 months of the end of the financial year of the eligible water market intermediary to which the statement and report relate.
(5) The eligible water market intermediary must retain copies of the trust account statement and the trust account audit report in accordance with any requirements specified in the Water Markets Intermediaries Code.
(6) A financial year of an eligible water markets intermediary means:
(a) if the eligible water markets intermediary is a body corporate to which section 323D of the Corporations Act 2001 applies—a financial year of the body corporate (within the meaning of that section); and
(b) in any other case—a year ending on 30 June.
(7) A person is liable to a civil penalty if the person contravenes subsection (1), (2), (3) or (4).
Civil penalty: 600 penalty units.
100W Requirement to provide trust account statement
(1) The ACCC may, by notice in writing given to an eligible water market intermediary, require the eligible water market intermediary to provide, for one or more financial years of the eligible water markets intermediary, one or more of the following:
(a) the trust account statement;
(b) the trust account audit report;
(c) any information or documents required to accompany the trust account audit report under paragraph 100V(3)(b).
(2) If the ACCC gives a notice under subsection (1) to an eligible water market intermediary, the eligible water marker intermediary must comply with the notice.
(3) A person is liable to a civil penalty if the person contravenes subsection (2).
Civil penalty: 600 penalty units.
100X Time of providing trust account statement or trust account audit report
(1) If the ACCC gives a notice under subsection 100W(1) to an eligible water market intermediary requiring the provision of a trust account statement or a trust account audit report for one or more financial years of the eligible water markets intermediary, the statement or the report must be provided:
(a) if the notice is given after the relevant day—within 21 days of the day on which the notice is given; or
(b) if the notice is given before the relevant day—within 21 days of the relevant day; or
(c) if the period that would otherwise apply is extended under subsection (2)—before the end of the extended period.
(2) The ACCC may, on application made by the eligible water markets intermediary or, if applicable, the auditor that is to prepare the trust account audit report, extend the period for complying with the notice. The extension may be of the period originally applicable or the period applicable under a previous extension.
(3) An extension may be given subject to any conditions imposed by the ACCC.
(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.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(5) A delegate under subsection (4) must comply with any written directions of the member of the ACCC who delegated the powers.
(6) For the purposes of paragraphs (1)(a) and (b), the relevant day, in relation to a trust account statement or a trust account audit report, means the day that is 3 months after the end of the most recent financial year of the eligible water markets intermediary to which the trust account statement or the trust account audit report relates.
100Y Provision of false or misleading information
(1) A person must not give false or misleading information in a trust account statement or a trust account audit report.
Civil penalty: 600 penalty units.
(2) This section does not apply to:
(a) information that the person could not have known was false or misleading; or
(b) the provision of a document containing false or misleading information if the document is accompanied by a statement of the person that the information is false or misleading.
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.
Civil penalty: 600 penalty units.
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: