(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
(1) If:
(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.
(3) If:
(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.
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.
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.
(2) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 100 penalty units.
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.
Civil penalty: 120 penalty units.
(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:
(a) does not know of the circumstances that constitute the contravention of the provision concerned; or
(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.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see section 154E.
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:
(a) does not know of the circumstances that constitute the contravention of the provision concerned; or
(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.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see section 154E.
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:
(a) does not know of the circumstances that constitute the contravention of the provision concerned; or
(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.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see section 154E.
Part 6—Commonwealth Environmental Water Holder
Division 1—Establishment and functions
104 Establishment
There is to be a Commonwealth Environmental Water Holder.
105 Functions
(1) The functions of the Commonwealth Environmental Water Holder are, on behalf of the Commonwealth:
(a) to manage the Commonwealth environmental water holdings; and
(b) to administer the Environmental Water Holdings Special Account.
(2) The function of managing the Commonwealth environmental water holdings includes doing any of the following on behalf of the Commonwealth:
(a) exercising any powers of the Commonwealth to purchase, dispose of and otherwise deal in water and water access rights, water delivery rights or irrigation rights;
(b) exercising any powers of the Commonwealth to enter into contracts (including options contracts) for the purposes of such purchasing, disposal or other dealing;
(c) maintaining an up to date record of the Commonwealth environmental water holdings;
(d) making available water from the Commonwealth environmental water holdings;
(e) entering into contracts or other arrangements in relation to:
(i) the taking or use of water under rights or interests that form part of the Commonwealth environmental water holdings; or
(ii) the undertaking of work to enable the taking or use of water under rights or interests that form part of the Commonwealth environmental water holdings.
(3) The functions of the Commonwealth Environmental Water Holder are to be performed for the purpose of protecting or restoring the environmental assets of:
(a) the Murray‑Darling Basin; and
(b) other areas outside the Murray‑Darling Basin where the Commonwealth holds water;
so as to give effect to relevant international agreements.
Note: This subsection and subsection (4) are modified in relation to water access rights acquired by the Commonwealth with amounts debited from the Water for the Environment Special Account (see subsection 86AE(2)).
(4) Without limiting subsection (3), the Commonwealth Environmental Water Holder must manage the Commonwealth environmental water holdings in accordance with:
(a) to the extent that the Commonwealth environmental water holdings relate to water in the Murray‑Darling Basin—the environmental watering plan; and
(b) to the extent that the Commonwealth environmental water holdings relate to water in an area outside the Murray‑Darling Basin—the plan (if any) that:
(i) relates to environmental watering in that area; and
(ii) is specified, in relation to that area, in the regulations; and
(c) any operating rules that the Minister has made under section 109; and
(d) any environmental watering schedules to which the Commonwealth Environmental Water Holder is a party.
(5) Paragraph (4)(a) does not prevent the Commonwealth Environmental Water Holder making available water from the Commonwealth environmental water holdings for the purposes of protecting or restoring the environmental assets of an area outside the Murray‑Darling Basin so as to:
(a) give effect to an agreement between the Commonwealth and one or more States; and
(b) return water to the Snowy River.
106 Limitation on disposal of water and Commonwealth environmental water holdings
(1) The Commonwealth Environmental Water Holder may only dispose of water or Commonwealth environmental water holdings in accordance with subsection (2) or (3).
Water or holdings that cannot be carried over, or that are likely to result in a reduced allocation
(2) The Commonwealth Environmental Water Holder may dispose of water or Commonwealth environmental water holdings during a water accounting period if he or she reasonably believes that:
(a) the water or the water holdings are not required in the water accounting period to meet the objectives of:
(i) if the water is in, or the water holdings relate to water in, the Murray‑Darling Basin—the environmental watering plan; or
(ii) if the water is in, or the water holdings relate to water in, an area outside the Murray‑Darling Basin—any plans specified in the regulations in relation to that area; or
(iii) any applicable environmental watering schedules; and
(b) either:
(i) the water or the water holdings cannot be carried over into the next water accounting period; or
(ii) a water allocation in respect of particular Commonwealth environmental water holdings is likely to be reduced (including to nil) if the disposal does not occur.
Proceeds of disposal used for new acquisitions or environmental activities
(3) The Commonwealth Environmental Water Holder may dispose of water or Commonwealth environmental water holdings if:
(a) the Commonwealth Environmental Water Holder uses the proceeds of the disposal for either or both of the following activities:
(i) acquiring water or Commonwealth environmental water holdings;
(ii) for a disposal of a water allocation—environmental activities; and
(b) if the disposal is of a water allocation and any of the proceeds of the disposal are used for environmental activities—the long‑term annual diversion limit condition is satisfied in relation to the disposal (see subsections (5) and (6)); and
(c) in any case—the Commonwealth Environmental Water Holder reasonably believes, at the time of the disposal, that using the proceeds for activities of the kind mentioned in subparagraph (a)(i) or (ii) (if applicable) would improve the capacity of the Commonwealth environmental water holdings to be applied to meet the objectives of one or more of the following:
(i) the environmental watering plan;
(ii) a plan specified in the regulations in relation to an area outside the Murray‑Darling Basin;
(iii) protecting or restoring the environmental assets of an area outside the Murray‑Darling Basin in relation to which those regulations do not specify a plan.
Note: Paragraph (c) is modified in relation to water access rights acquired by the Commonwealth with amounts debited from the Water for the Environment Special Account (see subsection 86AE(2)).
(4) For the purposes of subparagraph (3)(a)(ii) and paragraph (3)(b), environmental activities do not include paying a fee or charge of the kind referred to in paragraph 91(1)(a), (b) or (c), or subparagraph 91(1)(d)(i), (ii), (iii) or (iv), in relation to Commonwealth environmental water holdings.
Note: Section 91 is about regulated water charges.
(5) For the purposes of paragraph (3)(b), the long‑term annual diversion limit condition is satisfied in relation to a disposal of a water allocation if:
(a) before the disposal, the Authority had published information indicating whether the long‑term annual diversion limit had been complied with for a water accounting period for the part of the water resources of the water resource plan area to which the water allocation relates; and
(b) the Commonwealth Environmental Water Holder is satisfied, at the time of the disposal and on the basis of information published as mentioned in paragraph (a), that, for the most recent water accounting period for which such information had been published, the limit had been complied with for that part of those water resources.
(6) The long‑term annual diversion limit condition is also satisfied in relation to a disposal of a water allocation if the Authority had not published information of the kind mentioned in paragraph (5)(a) before the disposal for any water accounting period.
107 Limitation on directions to Commonwealth Environmental Water Holder